September 23, 2019
Petition for Review of an Order of the Board of Immigration
Appeals No. A72-569-248
Easterbrook, Hamilton, and St. Eve, Circuit Judges.
EASTERBROOK, CIRCUIT JUDGE
Malukas, a citizen of Lithuania, entered the United States in
1992 on a tourist visa and did not leave when it expired. In
1995 he was convicted of several weapons-related felonies and
sentenced to 52 months in prison. While he was imprisoned,
immigration officials began removal proceedings. Malukas
applied for discretionary relief as the spouse of a U.S.
citizen, but the immigration judge (and later the Board of
Immigration Appeals) concluded that his criminal conduct
outweighed whatever equities his family and financial ties to
the United States supplied.
Board's final order was entered in July 2003, and
Ma-lukas did not seek judicial review. He did file a timely
motion for reconsideration, arguing that his criminal conduct
should not have been deemed such a high obstacle to relief.
The Board denied that motion in September 2003, and again
Malukas did not seek judicial review.
remained in the United States, in part because he had allowed
his Lithuanian passport to expire and Lithuania would not
issue new travel documents. In 2018 Malukas filed with the
Board a second motion to reconsider, and an initial motion to
reopen, contending that the removal order is invalid because
the proceeding began with a "Notice to Appear" that
did not include a date and time for the hearing. See
Pereira v. Sessions, 138 S.Ct. 2105 (2018). The date
and time were furnished in a later document, and Malukas did
not argue at his removal hearing that he lacked adequate
notice. Still, he maintained, the defect on the original
Notice to Appear deprived the immigration judge of
jurisdiction and vitiated the removal order. The motion also
contended that he had been rehabilitated by the passage of
time, so that the equities now weighed in his favor, and that
Lithuania's failure to accept his return also justifies
discretionary relief. The Board denied this motion as
time-and-number barred. (Only one motion to reconsider is
allowed, and the time limit for a motion to reopen is 90
days. 8 U.S.C. §1229a(c)(6)(A), (c)(7)(C)(i); 8 C.F.R.
§1003.2(b)(2), (c)(2).) The Board added that a defect in
a Notice to Appear does not affect jurisdiction.
aspect of the Board's ruling has since been confirmed by
this court. Ortiz-Santiago v. Barr, 924 F.3d 956
(7th Cir. 2019). The BIA's reasoning differs from that of
Ortiz-Santiago, but the bottom line is the same.
This means that the Board did not commit a legal error that
would permit judicial review despite the fact that the motion
to reopen is 15 years late and that the second motion to
reconsider is not only untimely but also independently barred
to avoid the time-and-number problem, Malukas asked the Board
to reopen sua sponte-that is to say, on its own
volition. The time-and-number limits apply to aliens'
motions and do not restrict the Board's (or the Attorney
General's) authority to act independently of a motion.
But the request that Malukas made-a motion to reopen sua
sponte-is an oxymoron. Reopening in response to a motion
is not sua sponte; it is a response to the motion
and thus subject to the time-and-number limits.
Board's time-and-number limits have a parallel in the
federal law of collateral review. Only one motion for review
is permitted, unless the conditions for second or successive
motions have been satisfied. 28 U.S.C. §§ 2244,
2255(h). And if a court of appeals decides that those
conditions have not been satisfied, the disappointed
applicant may not seek rehearing. 28 U.S.C.
§2244(b)(3)(E). Prisoners have tried several ways to get
around those limits. One is to characterize a successive
petition as a motion for relief under Fed.R.Civ.P. 60(b) from
the adverse decision. The Justices held, however, that when
such a motion rests on substantive arguments it counts as a
forbidden successive petition. Gonzalez v. Crosby,
545 U.S. 524 (2005). Another approach has been to ask the
court of appeals to recall its mandate rather than to grant
rehearing. The Justices stated that such a motion should be
treated the same as a petition for rehearing, see
Calderon v. Thompson, 523 U.S. 538, 554 (1998),
though they added that if the court of appeals says that it
would have recalled its mandate whether or not the prisoner
sought relief, they will take the judges at their word.
standards of Gonzalez and Calderon, the
document that Malukas filed with the Board is a motion for
reopening or reconsideration, properly denied on
time-and-number grounds. The arguments that Malukas has
rehabilitated himself, and that Lithuania's decision not
to accept his return affects the weighing of equities, are
substantive. The Board stated its reasons for not reopening
or reconsidering on the merits, thus satisfying Iglesias
v. Mukasey, 540 F.3d 528 (7th Cir. 2008). And the Board
did not hint that it would have reopened in the absence of a
motion; to the contrary, it denied the motion actually made,
While the respondent alternately requests that the Board
exercise our discretionary authority to reopen proceedings
sua sponte, that authority is reserved for rare,
"exceptional" situations not demonstrated here. 8
C.F.R. §1003.2(a); Matter of]-]-, 21 I&N
Dec. 976 (BIA 1997); Matter of G-D-, 22 I&N Dec.
1132 (BIA 1999). Thus, we will deny the respondent's
Gonzalez and Calderon require us to reject
Malukas's position that adding the phrase "sua
sponte" to an untimely or number-barred motion
makes those limits go away and opens the Board's decision
to plenary judicial review. Instead we reiterate the
conclusion of Anaya-Aguilar v. Holder, 683 F.3d 369,
371-73 (7th Cir. 2012) that, because the Board has unfettered
discretion to reopen, or not, sua sponte, its
decision is not subject to judicial review at all. See 8
U.S.C. §1252(a)(2)(B). See also Heckler v.
Chaney, 470 U.S. 821 (1985) (no judicial review when
decision has been committed to agency discretion by law).
equally true if we deem a "motion to reopen sua
sponte" as equivalent to a request for mercy
notwithstanding all legal obstacles. Dealing with such a
request is within the Board's discretion, and no rules of
law apply to the provision or withholding of administrative
grace. Nor does the holding of Iglesias that the
Board must give reasons for denying a genuine motion to
reopen affect decisions, pro or con, about sua
sponte relief; Igles ...