United States Court of Appeals
For the First Circuit
No. 24-1330
SINE PHIMMADY,
Petitioner,
v.
PAMELA BONDI, Attorney General,*
Respondent.
PETITION FOR REVIEW OF AN ORDER OF
THE BOARD OF IMMIGRATION APPEALS
Before
Barron, Chief Judge,
Montecalvo and Rikelman, Circuit Judges.
Edward Crane, for petitioner.
Greg D. Mack, Senior Litigation Counsel, Office of
Immigration Litigation, with whom Brian Boynton, Principal Deputy
Assistant Attorney General, Civil Division, and Sabatino F. Leo,
Assistant Director, Office of Immigration Litigation, were on
brief, for respondent.
February 10, 2025
* Pursuant to Federal Rule of Appellate Procedure 43(c)(2),
Attorney General Pamela Bondi is automatically substituted for
former Attorney General Merrick B. Garland as Respondent.
RIKELMAN, Circuit Judge. Sine Phimmady asked the Board
of Immigration Appeals (BIA) to reopen his removal proceedings sua
sponte after a court vacated his criminal convictions from decades
earlier. The BIA denied his motion to reopen, and he petitioned
our court for review. Phimmady argues that, in rejecting his
motion, the BIA departed from its settled practice of granting sua
sponte reopening whenever a conviction rendering a noncitizen
removable is vacated due to a defect in the criminal proceedings.
He requests that we remand his case to the BIA so that it can
address its settled practice. Because we conclude the BIA does
not have the settled practice that Phimmady describes, we deny his
petition.
I. BACKGROUND
In 1979, when Phimmady was just two years old, he and
his family were admitted to the United States as refugees from
Laos. They initially lived in Milwaukee, Wisconsin, and then later
moved to Lowell, Massachusetts.
As an adolescent, Phimmady joined a gang in Lowell,
shortly after he himself was the victim of gang violence. In
connection with his gang activity, Phimmady was charged in two
separate cases in Lowell Juvenile Court in 1992, when he was 15
years old. The cases were then transferred to Middlesex County
Superior Court.
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In both cases, Phimmady was charged with assault-related
crimes. The indictments in the first case concerned an incident
on April 14, 1992, and charged Phimmady with three counts of armed
assault with intent to murder, two counts of assault and battery
with a dangerous weapon, three counts of assault with a dangerous
weapon, and one count of conspiracy. The indictments in the second
case concerned an incident three weeks earlier, on March 24, 1992,
and charged Phimmady with armed robbery while masked and armed
assault in a dwelling.
Phimmady pled guilty to all counts in both cases in
September 1993. He was sentenced to 9 to 12 years in state prison
on the first set of indictments and 10 to 15 years, suspended for
5 years, on the second set of indictments.
While Phimmady was serving his criminal sentence,
Immigration and Naturalization Services (INS) initiated removal
proceedings against him. The Immigration Judge (IJ) assigned to
Phimmady's case found him deportable due to his 1993 criminal
convictions and entered an order of removal on March 30, 1995.
Phimmady appealed the removal order, but the BIA dismissed his
appeal.
Phimmady served five years in state prison before being
paroled in 1998 and released directly into INS custody. Rather
than removing him to Laos, however, INS released Phimmady in June
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2000 with an order of supervision, which required him to check in
periodically with an INS office in Boston.
Phimmady then worked to rebuild his life in
Massachusetts. Only eight days after his release from INS custody,
he obtained a position at Hologic, Inc. and remained employed there
for 17 years. He currently works as a manufacturing manager at
Belmont Medical Technologies. Phimmady also married and started
a family. He has three children, who all attend Lowell Public
Schools. Since being released in 2000, Phimmady has not been
charged with any crimes.
Over two decades after his release, Phimmady
successfully sought post-conviction relief for his 1993
convictions. In 2022, he filed a motion to withdraw his guilty
pleas to both sets of indictments because the judge who presided
at his plea hearing did not provide him with a warning about the
potential immigration consequences of his plea, as required by
Massachusetts law. See Mass. Gen. Laws, ch. 278 § 29D. After a
hearing on the motion, the court allowed Phimmady to withdraw his
pleas, finding that the Commonwealth of Massachusetts had not
carried its burden of showing that Phimmady received the required
warning. The Commonwealth then filed a partial nolle prosequi in
both cases (a formal notice that it would not pursue prosecution),
explaining that "[d]ue to the passage of time, the Commonwealth is
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no longer in possession of any information, reports, or evidence
that formed the basis for the indictments."
Because a court had vacated the convictions establishing
the basis of his removability, Phimmady asked the BIA to exercise
its discretion to reopen his removal proceeding under 8 C.F.R.
§ 1003.2(a), commonly referred to as sua sponte reopening. The
BIA declined, explaining that Phimmady had not "demonstrated an
exceptional situation such that sua sponte reopening of these
proceedings is warranted based on claimed equities arising more
than 27 years after the final administrative order of removal."
The BIA found it significant that Phimmady "provided no
explanation" for his delay in seeking post-conviction relief.
Phimmady then filed a motion for reconsideration with
the BIA. He argued that the BIA's decision in his case was at
odds with its "long-standing and well-settled practice" of
concluding an exceptional situation exists, warranting sua sponte
reopening, whenever a noncitizen demonstrates that the conviction
underlying their removal order was vacated due to a defect in the
criminal proceeding. In support of his argument, he appended to
his motion 92 of the BIA's prior unpublished decisions. Of the 92
decisions, he characterized 90 as examples of the settled course
of adjudication that he described. He argued that the BIA had
previously denied sua sponte reopening in the face of vacated
convictions only when the noncitizen had already been removed, and
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he attached two cases with that fact pattern. He also explained
that he had not sought post-conviction relief earlier because he
could not afford to pay for an attorney prior to a change in his
income in 2022.
The BIA denied Phimmady's motion to reconsider. It found
that there was no evidence of any "extraordinary circumstance"
that would have prevented Phimmady from securing counsel or seeking
post-conviction relief earlier. After acknowledging the "numerous
unpublished decisions where [the BIA] has exercised its sua sponte
authority to reopen and terminate proceedings following a vacatur
of a criminal conviction," the BIA stated that it was "bound by
law to decide the merits of the matters before [it] on the specific
facts and circumstances of each case." Having considered the
"totality of the facts and circumstances surrounding [Phimmady's]
conviction, the egregious conduct he [pled] guilty to, [and] the
technicality [on] which his conviction was vacated in part because
of [his] own delay in seeking post-conviction relief," the BIA
once again declined to exercise its discretion to reopen his
proceedings.
Phimmady then filed this timely petition for review of
the BIA's decision.
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II. DISCUSSION
A. Jurisdiction
We begin by evaluating our jurisdiction to review
Phimmady's claim that the BIA departed from its settled course of
adjudication when it denied his motion for sua sponte reopening.
Phimmady contends that we have jurisdiction to review his claim
and requests that we remand his case to the BIA to address its
settled practice. The government requests that we dismiss
Phimmady's petition on the ground that we lack jurisdiction to
consider his claim.
To provide context for the parties' jurisdictional
dispute, we briefly summarize the statutory and regulatory scheme
governing motions to reopen immigration proceedings. Before the
Illegal Immigration Reform and Immigrant Responsibility Act of
1996 (IIRIRA), BIA regulations governed motions to reopen. Under
those regulations, at least until 1996, there were no number
restrictions or time limits on requests to reopen immigration
proceedings, but there was also no statutory right to file a motion
to reopen. See Dada v. Mukasey, 554 U.S. 1, 12-14 (2008). When
Congress enacted IIRIRA, it codified a limited, statutory right to
file a motion to reopen: A noncitizen could file one motion within
90 days of a final removal order, subject to certain exceptions.
See 8 U.S.C. § 1229a(c)(7)(A), (c)(7)(C)(i)-(iv). We have
jurisdiction to review BIA decisions denying a statutory motion to
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reopen, Kucana v. Holder, 558 U.S. 233, 253 (2010), but this case
does not concern such a motion.
In addition to statutory motions to reopen under IIRIRA,
the BIA also has the authority to reopen immigration proceedings
at any time based on its own regulation, 8 C.F.R. § 1003.2(a).
The regulation states:
The Board may at any time reopen or reconsider
on its own motion any case in which it has
rendered a decision. . . . The decision to
grant or deny a motion to reopen or reconsider
is within the discretion of the Board, subject
to the restrictions of this section. The
Board has discretion to deny a motion to
reopen even if the moving party has made out
a prima facie case for relief.
8 C.F.R. § 1003.2(a). The agency and litigants refer to a request
under this regulation as a motion for sua sponte reopening.1 "No
statute or regulation has provided any standard for the Board to
apply in exercising its sua sponte powers." Charles v. Garland,
113 F.4th 20, 23 (1st Cir. 2024). That said, the BIA has made
clear that sua sponte reopening is "an extraordinary remedy
reserved for truly exceptional situations." In re G-D-,
22 I. & N.
Dec. 1132, 1133-34 (BIA 1999). Even in truly exceptional
situations, however, "the Board is not required -- by regulation
or its own decisions -- to reopen proceedings sua sponte."
This nomenclature is somewhat misleading because usually
1
the noncitizen must request that the BIA reopen proceedings. See
Park v. Att'y Gen., 846 F.3d 645, 650 (3d Cir. 2017).
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Charles, 113 F.4th at 23 (quoting Bonilla v. Lynch,
840 F.3d 575,
585 (9th Cir. 2016)).
"[W]e have limited jurisdiction to review constitutional
claims or errors of law" that may crop up in the course of the
BIA's resolution of motions for sua sponte reopening. Thompson v.
Barr, 959 F.3d 476, 480, 483 (1st Cir. 2020) (footnote omitted).2
We have linked our limited jurisdiction to a section of the REAL
ID Act of 2005, which clarified that no provision in IIRIRA
limiting or eliminating judicial review for discretionary agency
decisions "shall be construed as precluding review of
constitutional claims or questions of law raised upon a petition
for review filed with an appropriate court of appeals."
8 U.S.C.
§ 1252(a)(2)(D); see Thompson,
959 F.3d at 481-83. "When the BIA's
denial of a motion to reopen rests on a legal error, it is
appropriate to 'remand to the BIA so it may exercise its authority
against the correct legal background.'" Thompson,
959 F.3d at 483
(quoting Bonilla,
840 F.3d at 588).
The parties dispute whether this case presents a claim
of legal error that we can review. Phimmady argues that by
departing from its settled course of adjudication with respect to
sua sponte reopening, the BIA committed a judicially reviewable
2 The Supreme Court has "express[ed] no opinion on whether
federal courts may review the Board's decision not to reopen
removal proceedings sua sponte." Kucana, 558 U.S. at 251 n.18.
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legal error. In Phimmady's view, the 90 decisions he relies upon
establish a settled course of adjudication: If the noncitizen shows
that the conviction rendering them removable was vacated due to a
defect in the criminal proceeding, the BIA concludes that an
exceptional situation justifying the exercise of its discretion
exists, regardless of any other factors. The government disagrees
that Phimmady has presented a reviewable legal claim; it contends
that there is no settled course of adjudication and Phimmady merely
asks us to find that the facts of his case are sufficiently similar
to the facts of other cases where the BIA granted sua sponte
reopening. The government insists that this "entirely factual"
argument is "outside the scope of legal questions that are
reviewable under section 1252(a)(2)(D)."
We can bypass a statutory jurisdiction question when the
resolution of the case on the merits "is straightforward" and would
favor the party challenging the court's jurisdiction, here the
government. Chun Mendez v. Garland, 96 F.4th 58, 65 (1st Cir.
2024) (citation omitted); see also Doe v. Town of Lisbon,
78 F.4th
38, 44-45 (1st Cir. 2023). We follow that approach here, assuming
that we have jurisdiction under § 1252(a)(2)(D), because we
conclude that Phimmady's claim fails on the merits.
B. Settled Course of Adjudication
Phimmady has not demonstrated the settled course of
adjudication he relies on: that the BIA grants sua sponte reopening
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whenever a conviction rendering a noncitizen removable is vacated.
First, the BIA has not articulated a standard to apply in deciding
whether to exercise its discretion to grant sua sponte reopening,
except to say that it will do so only in "truly exceptional
situations." In re G-D-, 22 I. & N. Dec. at 1133-34. Phimmady
does not point us to any decision -- published or unpublished -- in
which the BIA has expanded on what situations qualify as "truly
exceptional." Nor does he point us to any decision where the BIA
explicitly stated that the vacatur of the conviction making a
noncitizen removable establishes a truly exceptional situation,
regardless of any other factors.3
Second, the cases Phimmady relies on do not demonstrate
the settled course of adjudication that he asserts the BIA has
adopted in practice -- i.e., that the BIA will find a truly
3 The parties disagree whether unpublished decisions can ever
establish a settled course of adjudication. We recognize that
"unpublished BIA decisions carry no precedential value." Charles,
113 F.4th at 24 (quoting Tulung v. Garland,
102 F.4th 551, 557
(1st Cir. 2024)). At the same time, we have previously stated
that "we see no earthly reason why the mere fact of nonpublication
should permit an agency to take a view of the law in one case that
is flatly contrary to the view it set out in earlier (yet
contemporary) cases." Thompson,
959 F.3d at 487 (quoting
Dávila-Bardales v. INS,
27 F.3d 1, 5-6 (1st Cir. 1994)). Thus,
historically, we have considered unpublished decisions in
determining whether the BIA has established a settled course of
adjudication. See, e.g., Adeyanju v. Garland,
27 F.4th 25, 49
n.25 (1st Cir. 2022) (pointing out that petitioner failed to cite
any precedential BIA decisions but going on to address the trend
in unpublished cases); Thompson,
959 F.3d at 486-89 (considering
the BIA's published and unpublished decisions). We have provided
Westlaw citations to unpublished decisions where available.
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exceptional situation exists based on the vacatur of a criminal
conviction alone. In fact, in several of the cases Phimmady cites,
the BIA stated that it was evaluating the totality of the
circumstances to decide whether to reopen the case sua sponte,
even when the petitioner's criminal conviction had been vacated.
In at least five decisions, the BIA considered the lack of
opposition from the Department of Homeland Security (DHS) in
granting such motions to reopen. See, e.g., In re Jose
Deltoro-Aguilar (BIA Feb. 12, 2020); In re Arutyun Demirchyan,
2019 WL 7168795 (BIA Oct. 31, 2019); In re Jose Jesus Arredondo
Gomez,
2018 WL 3007175 (BIA Apr. 19, 2018); In re Jose Augustin
Fernandez,
2017 WL 1951529 (BIA Apr. 6, 2017); In re Jose Maria
Guerrero,
2008 WL 2517556 (BIA June 4, 2008); see also In re Luis
Miguel Peguero Concepcion (BIA June 9, 2016) (suggesting, but not
explicitly stating, that DHS's lack of opposition was a factor it
considered); In re Ramon Peguero-Cruz (BIA July 27, 2020) (same);
In re Renato De Bartolo (BIA Dec. 11, 2015) (noting DHS did not
respond to the motion to reopen); In re Jacinto Moises
Carbonell-Desliz (BIA Jan. 13, 2014) (same). In at least four
additional cases, the BIA stated that it considered the totality
of the circumstances in granting the motions to reopen, but it is
not clear what factors it considered other than vacatur. See,
e.g., In re Abbas Al-Murshidy (BIA Feb. 27, 2020); In re Randy
Ramzi Nissu (BIA Jan 31, 2018); In re Carlos Avalos-Mendez (BIA
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Jan. 22, 2016); In re Sewdat Rajpaul (BIA Aug. 15, 2013). However,
we cannot assume from the BIA's failure to discuss additional
factors in its unpublished decisions that the BIA did not consider
any other factors in reaching those decisions. See Djokro v.
Garland, 102 F.4th 39, 46 (1st Cir. 2024) (explaining that we could
not assume the petitioners were similarly situated in "relevant
respects to . . . prevailing petitioners" in unpublished BIA
decisions which "d[id] not discuss the facts").
Additionally, there are at least two cases in which the
BIA considered the petitioner's diligence in pursuing
post-conviction relief. In one such case, the BIA granted sua
sponte reopening, explaining that "[u]pon consideration of the
totality of the circumstances presented in this case, including
the record evidence indicating that the respondent diligently
pursued his rights . . . , we find that an exceptional situation
has been demonstrated that warrants sua sponte reopening." In re
William Paul Okweari (BIA Oct. 4, 2018). In the other, the BIA
found that the petitioner had not established that sua sponte
reopening was warranted because "he [had] not adequately explained
why he waited approximately 8 years after his conviction and more
than 5 years after the effective date of [the law allowing
vacatur], to file his motion to vacate." Matter of Ramon Gonzalez
Dominguez, 2023 WL 8826712, at *2 (BIA Apr. 12, 2023). Relying on
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these cases, the government argues that delay is a factor that the
BIA considers in exercising its discretion.4
Phimmady disagrees that the BIA has considered diligence
in pursuing post-conviction relief, contending that the vast
majority of the BIA's decisions do not discuss delay when a
conviction underlying a removal order is vacated. And he is
correct that in at least two cases, the BIA went so far as to
reverse IJs who had considered the noncitizen's delay in seeking
post-conviction relief as a factor in denying sua sponte reopening.
See In re Pakhanthong Daraphet (BIA Dec. 10, 2015); In re Isidro
Cabrera-Cabrera (BIA June 27, 2018) ("As the sole conviction
4The government points to four additional cases to support
its argument that the BIA regularly considers diligence in pursuing
post-conviction relief. We disagree with the government's
characterization of these four cases. For example, in one of the
cited cases, the BIA analyzed diligence in ruling on a request for
equitable tolling, which is not at issue in this case. Matter of
Friendy Grandoit, 2023 WL 4060114, at *1 (BIA Jan. 25, 2023). In
two additional cases, the noncitizens had already been removed
from the United States and reentered without inspection. See
Matter of Samuel Avila-Morales,
2023 WL 9658715, at *1 (BIA Aug.
4, 2023); In re Jose Jesus Munoz,
2017 WL 1330146, at *3 n.1 (BIA
Mar. 3, 2017). The latter two cases thus fit the pattern Phimmady
described of the BIA denying sua sponte reopening if the noncitizen
has already been removed. In the final case cited by the
government, the BIA stated that "[t]he fact that it took over a
decade for the respondent to vindicate his rights does not
undermine" the reopening of the respondent's removal proceedings.
In re Wagner Aneudis Martinez (BIA Jan. 12, 2016). The government
takes this sentence to mean that the respondent had been diligently
pursuing post-conviction relief for a decade, but that fact is not
evident from the decision itself. To the contrary, the BIA's
decision in Aneudis Martinez can also be read to reject delay as
a relevant consideration.
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underlying the respondent's removability has been vacated and is
no longer valid for immigration purposes, we disagree with the
Immigration Judge that sua sponte reopening is unwarranted, even
though the [motion for post-conviction relief] . . . was filed
many years after the respondent's removal order."). In Phimmady's
view, the BIA's recent decisions in Dominguez and his own case
denying sua sponte reopening based on delay do not "upset the
agency's settled course of adjudication"; instead, they show that
the BIA has only recently (and without explanation) diverted from
its settled course of finding that a vacated conviction always
gives rise to truly exceptional circumstances. Accordingly, he
argues the BIA erred by citing delay as a reason to reject his
motion for sua sponte reopening.
Although several outliers may not be enough to defeat a
settled course of adjudication claim, we do not agree with Phimmady
that his case and Dominguez are properly characterized as two
exceptions from a general rule. At a more fundamental level,
Phimmady has not established that the BIA has a settled practice
of disregarding delay whenever the conviction underlying a removal
order is vacated. By our count, the government has pointed us to
one case where the BIA treated diligence as a positive factor and
one case, other than this one, where it treated delay as a negative
factor. See Okweari; Dominguez, 2023 WL 8826712, at *2. On the
other hand, Phimmady has pointed us to two cases disclaiming that
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approach and reversing IJs who found that delay cut against sua
sponte reopening when the conviction underlying a noncitizen's
removal order was vacated. See Daraphet; Cabrera-Cabrera.
Although we are sympathetic to the principle that similarly
situated individuals should be subject to similar and predictable
standards, Phimmady cites "no law establishing that by granting
reopening in one case, the [BIA] limits its discretion to deny
relief in all similar . . . cases." Charles, 113 F.4th at 24.
In the majority of the cases submitted to us in which
there are several years between the noncitizen's conviction and
the ultimate post-conviction relief, we simply cannot tell from
the BIA's decision when the noncitizen began pursuing
post-conviction relief.5 As a result, we have no way to know
5See Aneudis Martinez; In re Ramon Peguero-Cruz (BIA July
27, 2020); In re Arutyun Demirchyan, 2019 WL 7168795 (BIA Oct. 31,
2019); In re Albert Limon Castro,
2018 WL 8333468 (BIA Dec. 28,
2018); In re Chouanson Chang (BIA Oct. 27, 2014); In re Ignacio
Javier Perez-Hernandez (BIA July 18, 2013); In re Phillip Harris,
2010 WL 3780640 (BIA Sept. 9, 2010); In re Zygmunt Kierewicz,
2010
WL 304228 (BIA Jan. 7, 2010); In re Roberto Brito,
2008 WL 5025245
(BIA Nov. 5, 2008); In re Manuel Fidalgo,
2008 WL 2079336 (BIA
Apr. 24, 2008); In re Delfino Hernandez-Ruiz,
2005 WL 3709277 (BIA
Dec. 28, 2005). In some cases, it is not even clear when the
noncitizen received post-conviction relief (let alone when it was
sought). See In re Kaydian Mckenzie,
2019 WL 2613143 (BIA Mar.
25, 2019) (11 years between removal order and motion for sua sponte
reopening based on vacatur); In re Durid Bahjat Hana,
2006 WL
901310 (BIA Feb 22, 2006) (15 years between the conviction and the
IJ's decision denying sua sponte reopening based on vacatur); In
re Jose Luis Barreiro,
2005 WL 1111833 (BIA Apr. 21, 2005) (12
years between removal order and motion for sua sponte reopening
based on vacatur). Notably, in their briefing, the parties
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whether the noncitizen delayed seeking post-conviction relief or
whether the process of receiving that relief was lengthy. Because
we lack that information, we cannot say Phimmady has established
that the BIA always grants sua sponte reopening when the conviction
underlying a noncitizen's removal order is vacated regardless of
any other factor, including a noncitizen's delay in seeking
post-conviction relief. See Menendez-Gonzalez v. Barr, 929 F.3d
1113, 1118 (9th Cir. 2019) ("[T]he existence of a 'settled course'
cannot be lightly inferred."). Accordingly, we cannot conclude
that the BIA committed the legal error of departing from a settled
course of adjudication.
III. CONCLUSION
For all these reasons, the petition for review is denied.
highlighted BIA decisions where many years passed between the
noncitizen's conviction, removal order, and post-conviction
relief. In our view, these cases are the relevant subset for
determining whether the BIA has a settled practice that would apply
to Phimmady -- namely, a settled practice of granting sua sponte
reopening due to the vacatur of a conviction underlying removal,
regardless of delay. For that reason, we have not discussed cases
that Phimmady cites that did not involve a similarly long time
period between the conviction and post-conviction relief.
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