Last week, the U.S. Supreme Court announced that it would decide whether a regulatory deadline by which motions to reopen must be filed could be bent. Mata v. Holder, 14-185, 2015 WL 213642 (Jan. 16, 2015). The Court’s decision to grant the petition for writ of certiorari last Friday was understandably clouded by news that it also agreed to hear a collection of cases involving equal marriage rights. Though less prominent, Mata is of significance to anyone involved in immigration law.
This case arises from a time limit on when individuals in removal proceedings must file a motion to reopen. A regulation, 8 C.F.R. § 1003.2(c)(2), clearly establishes that, in most circumstances, respondents must do so within 90 days of a final order of removal being entered. Mata gauges just how rigid is this deadline. There is little doubt that some deadline needs to exist, but is it fair to do so without any flexibility? What if an emergency arises in the migrant’s life in the days leading to the deadline while she was diligently preparing to file the motion? Or, as happened to Mr. Mata, what if the migrant’s attorney messed up?
Everyone agrees that Mr. Mata lost his appeal because his attorney didn’t file the required paperwork. After losing at the immigration court, Mr. Mata’s immigration attorney appealed to the Board of Immigration Appeals (BIA). In the Notice to Appeal, the attorney indicated that he would file a brief later explaining Mr. Mata’s arguments. The BIA gave Mr. Mata time to do so, but the deadline came and went and Mr. Mata’s attorney filed nothing. The Board, as a result, dismissed Mr. Mata’s appeal. Brief for the Respondent, Mata v. Holder, No. 14-185 at 5-6 (2014).
Aided by new counsel, Mr. Mata then submitted a motion to reopen the BIA’s decision, this time claiming that his earlier attorney had provided ineffective assistance of counsel. The government and Mr. Mata agree that he missed the 90-day deadline by which to file the motion to reopen, but they disagree as to why. Mr. Mata claims he “was not aware of his former counsel’s negligence until after such [90-day] deadline had elapsed.” Petition for Writ of Certiorari, Mata v. Holder, No. 14-185, at 9 (2014). For its part, the government claims that within a month of the BIA’s decision to deny his appeal Mr. Mata “had consulted with new attorneys regarding his case, at least two of whom told him that his prior counsel had performed ineffectively in failing to file an administrative brief.” Brief for the Respondent at 6-7.
The fact that the Supreme Court granted cert suggests several justices are inclined to believe Mr. Mata’s version of this fact, but that’s not to say that they’re inclined to conclude that the law is ultimately on his favor. They’ll have to grapple with the Fifth Circuit’s position, announced in Mr. Mata’s subsequent appeal, that it had no jurisdiction to review the Board’s decision. Mata v. Holder, 558 Fed. Appx. 366, No. 13-60253 (5th Cir. March 5, 2014) (per curiam) (unpublished). The BIA could have considered the merits of Mr. Mata’s motion to reopen, but its decision to do so or not is entirely within its power, the Fifth Circuit explained. “As the BIA has complete discretion in determining whether to reopen sua sponte under 8 C.F.R. § 1003.2(a), and we have no meaningful standard against which to judge that exercise of discretion, we lack jurisdiction to review such decisions,” the panel wrote. Id. at 367 (citing Ramos-Bonilla v. Mukasey, 543 F.3d 216, 220 (5th Cir. 2008)). Most circuits take a different approach. According to Mr. Mata, every circuit but the Fifth says so. Petition for Writ of Certiorari at 11-12.
What’s more, the government agrees that the Fifth Circuit mucked things up. “The government agrees with petitioner that the court of appeals erred in denying his petition for review for lack of jurisdiction under Ramos-Bonilla v. Mukasey, 543 F.3d 216, 220 (5th Cir. 2008). Equitable tolling is available for an alien who demonstrates that ineffective assistance of counsel caused him to miss the 90-day deadline for filing a motion to reopen….” Brief for the Respondent at 11-12. The best remedy for this error, the government suggested, was to grant the cert petition, vacate the Fifth Circuit’s judgment, and remand. Id. at 12. Obviously the Supreme Court chose a different path.
The key question that the Court will address is “Whether the Fifth Circuit Court of Appeals erred in this case in holding that it has no jurisdiction to review Petitioner’s request that the Board equitably toll the 90-day deadline on his motion to reopen as a result of ineffective assistance of counsel under 8 C.F.R. § l003.2(c)(2).” The judicial trend is that the Fifth Circuit did err, but we’ll see what the final word is from the Supreme Court. Meanwhile, the Court has already appointed an attorney, William Peterson, to defend the Fifth Circuit’s position given that Mr. Mata and the government can’t be expected to do so.
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