                           In the

United States Court of Appeals
              For the Seventh Circuit

No. 11-3052

JOSE A NAYA-A GUILAR,
                                                      Petitioner,
                              v.

E RIC H. H OLDER, JR., Attorney General
of the United States,
                                                     Respondent.


                  Petition for Review of an Order
              of the Board of Immigration Appeals.
                          No. A29-665-793


     A RGUED F EBRUARY 24, 2012—D ECIDED JUNE 14, 2012




  Before M ANION and R OVNER, Circuit Judges, and
C OLEMAN, District Judge.
  M ANION, Circuit Judge. Petitioner Jose Anaya-Aguilar,
who had entered the United States illegally, was
ordered removed to Mexico by an immigration judge on




   Hon. Sharon Johnson Coleman, of the Northern District of
Illinois, sitting by designation.
2                                               No. 11-3052

August 27, 2004. Anaya-Aguilar appealed to the Board
of Immigration Appeals, which affirmed the immigration
judge’s decision on June 2, 2005. Almost two years
later, Anaya-Aguilar moved to reopen the proceedings
based in large measure on his counsel’s alleged inef-
fective assistance. But under 8 U.S.C. § 1229a(c)(7)(C)(i), a
motion to reopen must be made within 90 days of the
final administrative order of removal. Although Anaya-
Aguilar could have made an equitable-tolling argument
that would have extended the statutory 90-day window
to file a motion to reopen, he did not do so; nor did
he provide sufficient factual support for the Board to
consider that argument. Therefore, on October 31, 2007,
the Board held that Anaya-Aguilar’s motion to reopen
proceedings was time-barred.
  Two weeks after the Board denied Anaya-Aguilar’s
motion to reopen, Anaya-Aguilar responded by filing a
motion to reconsider with the Board and attaching
new evidence that supported an equitable tolling argu-
ment. The Board denied Anaya-Aguilar’s motion to
reconsider on January 16, 2008, holding that the new
evidence he submitted was insufficient to allow the
Board to equitably toll the statutory 90-day filing period.
Moreover, the Board observed that new evidence may
not be submitted with a motion for reconsideration
and, therefore, that Anaya-Aguilar’s motion should
likely be construed as a second motion to reopen. The
Board held that, were it to construe Anaya-Aguilar’s
motion to reconsider as a second motion to reopen, the
motion would be not only procedurally barred (because,
like the first motion to reopen, it was not filed within
No. 11-3052                                                3

90 days of the final administrative order of removal) but
it would be also numerically barred because a petitioner
is generally allowed only one such motion. See 8 U.S.C.
§ 1229a(c)(7)(A); 8 C.F.R. § 1003.2(c)(2).
  Anaya-Aguilar petitioned this court for review in
November 2008, challenging the Board’s decision to
affirm the immigration judge’s removal finding, as well
as the Board’s denial of Anaya-Aguilar’s motions to
reopen and reconsider. At that time we noted that,
because of the procedural deficiencies in Anaya-Aguilar’s
petition, the Board had not reached the merits of his
ineffective-assistance-of-counsel claim. Anaya-Aguilar v.
Mukasey, 302 F. App’x 481, 482 (7th Cir. 2008). And
because the Board’s decisions to deny Anaya-Aguilar’s
motions to reopen and reconsider are discretionary, we
also stated that we could not review those decisions
unless they presented a constitutional or legal question.
Id. We held that Anaya-Aguilar’s petition did not
present such a question and, therefore, that we lacked
jurisdiction. Id.
  Anaya-Aguilar then petitioned the U.S. Supreme Court
for a writ of certiorari. While the petition was pending,
the Court issued its decision in Kucana v. Holder, 130 S. Ct.
827 (2010), holding that Congress intended for courts to
exercise judicial review over denials of motions to
reopen. See Kucana, 130 S. Ct. at 840. This decision, of
course, directly contradicted our holding in Anaya-
Aguilar’s case. So the Court granted Anaya-Aguilar’s
petition, vacated our judgment against Anaya-Aguilar,
and remanded the case to us for consideration in light
4                                               No. 11-3052

of the Kucana decision. Anaya-Aguilar v. Holder, 130 S. Ct.
1281, 1281 (2010). On remand, we examined the Board’s
denial of Anaya-Aguilar’s motion to reopen on the
merits and held that the Board did not abuse its discre-
tion. Anaya-Aguilar v. Holder, Nos. 07-3701, 08-1367 (7th
Cir. Sept. 22, 2010).
   Following our decision, Anaya-Aguilar moved the
Board to reopen the proceedings under its sua sponte
authority. See 8 C.F.R. § 1003.2(a). Along with that
motion, Anaya-Aguilar submitted new evidence,
including a description of the tumultuous conditions
in Mexico, family medical and educational records, finan-
cial records, employment records, and numerous af-
fidavits and letters from family and friends. Noting that
its exercise of sua sponte authority is reserved for “excep-
tional circumstances,” the Board denied Anaya-Aguilar’s
motion and stated that there was “no merit to [Anaya-
Aguilar’s] argument that he was denied a meaningful
opportunity to present evidence in support of his ap-
plication for relief.” Anaya-Aguilar now petitions for
review of the Board’s denial of his motion.
  Anaya-Aguilar concedes that his motion to reopen
sua sponte is numerically barred, and therefore argues
only that his case presents those “exceptional circum-
stances” under which the Board usually grants such a
motion. We have previously held, however, that “failure
to reopen sua sponte is a discretionary decision that is
unreviewable.” Pilch v. Ashcroft, 353 F.3d 585, 586 (7th
Cir. 2003) (citation omitted). Anaya-Aguilar counters
that this court has overruled Pilch since the Supreme
No. 11-3052                                               5

Court’s decision in Kucana, and, therefore, that we may
review the merits of his petition. See Munoz de Real v.
Holder, 595 F.3d 747, 749 (7th Cir. 2010).
  In Munoz de Real we reviewed an immigration judge’s
decision not to exercise her sua sponte authority to
reopen the petitioner’s case. Id. The petitioner argued
that the immigration judge erroneously held that she
lacked jurisdiction to reopen the case under her sua
sponte authority and, accordingly, abused her discretion.
We disagreed, noting “that [the immigration judge] did
in fact reach the question of whether to exercise her
discretion to reopen the case but chose not to do so.” Id.
at 750. The immigration judge found that “there was
insufficient evidence that the [removal] order was a
gross miscarriage of justice and concluded as a result
that discretionary reopening of the removal proceeding
was not justified.” Id. Because “Munoz de Real offer[ed]
nothing that suggest[ed] that this finding was an abuse
of discretion, . . . we s[aw] no reason to overturn it.” Id.
  Contrary to Anaya-Aguilar’s assertion, this perfunctory
affirmance hardly constitutes an overruling of our
holding in Pilch. Indeed, we did not even reach the ques-
tion of reviewability in Munoz de Real, instead choosing
to decide the case only on its merits. Nevertheless, we
recognize that there is a tension between our holdings
in Pilch and Munoz de Real. We have acknowledged as
much in two unpublished orders issued after Munoz
de Real. See Estrada v. Holder, 403 F. App’x 87, 89-90
(7th Cir. 2010); Kocev v. Holder, 365 F. App’x 707, 708 (7th
Cir. 2010). But, like our decision in Munoz de Real, in
6                                                  No. 11-3052

both of the subsequent cases we declined to address the
issue of whether we may review the Board’s refusal to
exercise its sua sponte authority, and instead affirmed
the Board’s decision on the merits. We believe it is now
time to foreclose any further discussion about whether
the Board’s refusal to exercise its sua sponte authority
is reviewable.1
  The Supreme Court made clear in its decision in Kucana
that it “express[ed] no opinion on whether federal courts
may review the Board’s decision not to reopen sua sponte.
Courts of Appeals have held that such decisions are
unreviewable because sua sponte reopening is committed
to agency discretion by law.” Kucana, 130 S. Ct. at 839
n.18. That is reason enough to leave our holding in
Pilch untouched. But, in addition, since the Kucana deci-
sion, eight of our sister circuits have addressed this
issue and have unanimously held that the Board’s denial
of a motion to reopen proceedings sua sponte remains
unreviewable. Pllumi v. Attorney Gen. of the U.S., 642
F.3d 155, 159 & n.6 (3d Cir. 2011); Luna v. Holder, 637 F.3d
85, 96 (2d Cir. 2011); Mejia-Hernandez v. Holder, 633 F.3d
818, 823-24 (9th Cir. 2011); Neves v. Holder, 613 F.3d 30, 35
(1st Cir. 2010); Gor v. Holder, 607 F.3d 180, 187-88 (6th
Cir. 2010); Ochoa v. Holder, 604 F.3d 546, 549 n.3 (8th Cir.
2010); Bakanovas v. Holder, 438 F. App’x 717, 722 (10th Cir.



1
  Accordingly, this opinion has been circulated among all
judges of this court in regular active service. No judge favored
a rehearing en banc on the question of whether the Board’s
refusal to exercise its sua sponte authority is reviewable.
No. 11-3052                                                7

2011); James-Aguirre v. U.S. Attorney Gen., 369 F. App’x 101,
103 (11th Cir. 2010). Given its compatibility with these
eight decisions, as well as with Kucana, overruling Pilch
would be improper. See Glaser v. Wound Care Consultants,
Inc., 570 F.3d 907, 915 (7th Cir. 2009) (“We have
overruled our prior decisions when our position
remains a minority one among other circuits, when the
Supreme Court issues a decision on an analogous issue
that compels us to reconsider our position, or when
an intracircuit conflict exists.”).
  Yet there is an even more fundamental reason to hold
that the Board’s sua sponte authority is unreviewable.
Although we recognize that there is “a ‘basic presump-
tion of judicial review’ ” of final agency decisions, Lincoln
v. Vigil, 508 U.S. 182, 190 (1993) (quoting Abbott Labs. v.
Gardner, 387 U.S. 136, 140 (1967)), that presumption is
overridden when an “agency action is committed to
agency discretion by law.” 5 U.S.C. § 701(a)(2). The Su-
preme Court elaborated that “§ 701(a)(2) makes clear that
‘review is not to be had’ in those rare circumstances
where the relevant statute ‘is drawn so that a court
would have no meaningful standard against which to
judge the agency’s exercise of discretion.’ ” Lincoln, 508
U.S. at 191 (quoting Heckler v. Chaney, 470 U.S. 821, 830
(1985)). The Eighth Circuit’s decision in Tamenut v.
Mukasey, 521 F.3d 1000 (8th Cir. 2008) (en banc) (per
curiam), is instructive in applying this rule governing
agency review to the circumstances of our case.
  The statute that governs motions to reopen covers
only those motions that are filed by a party—it says
8                                                 No. 11-3052

nothing about an agency’s sua sponte authority to reopen.
See Tamenut, 521 F.3d at 1004 (citing 8 U.S.C. § 1229a(c)(7)).
Likewise, the statutory authority that provides the At-
torney General with broad regulatory power makes no
mention of a sua sponte authority to reopen. See id. (citing
8 U.S.C. § 1103(g)). And the regulation promulgated by
the Attorney General that vests the Board with sua
sponte authority does not establish any standard for
determining when exercising such authority is appro-
priate. See id. (citing 8 C.F.R. § 1003.2(a)); see also 8
C.F.R. § 1003.2(c). Moreover, the regulation does not
require that the Board exercise its sua sponte authority at
all; rather, the regulation uses permissive language that
allows the Board to reopen a case at its own behest.
See 8 C.F.R. § 1003.2(a) (“The Board may at any time
reopen or reconsider on its own motion any case in
which it has rendered a decision.”). This strongly
suggests that the exercise of sua sponte authority is best
left to the discretion of the Board and, therefore, is
unreviewable. See Tamenut, 521 F.3d at 1004.
   As we mentioned above, the Board has concluded that,
in the absence of “extraordinary situations,” it will not
exercise its sua sponte authority to reopen a case. In re J-J-,
21 I. & N. Dec. 976, 984 (BIA 1997); see also In re G-D-, 22
I. & N. Dec. 1132, 1134 (BIA 1999) (characterizing its sua
sponte authority as “an extraordinary remedy reserved
for truly exceptional situations”). But the Board has not
established any sort of comprehensive standard or list
of factors in its case law that it considers when deter-
mining whether an extraordinary situation exists in a
particular case. See Mejia-Hernandez, 633 F.3d at 824;
No. 11-3052                                               9

In re G-D-, 22 I. & N. Dec. at 1134-35. Thus, there is no
meaningful standard on which we might base our re-
view. Moreover, even if there were such a standard, the
regulation’s permissive language makes clear that
the Board is never obligated to exercise its sua sponte
authority; therefore, any review of the Board’s refusal
to exercise such authority would be inappropriate. See
Tamenut, 521 F.3d at 1004-05.
  In sum, we confirm that our holding in Pilch—namely,
that the failure to reopen sua sponte is an unreviewable
discretionary decision—survives the Supreme Court’s
decision in Kucana and therefore controls in this case.
Moreover, there is “ ‘no meaningful standard against
which to judge the [Board’s] exercise of discretion’ ” in
reopening a petitioner’s case sua sponte. Lincoln, 508 U.S.
at 191 (quoting Heckler, 470 U.S. at 830). Thus, that action
is committed to the Board’s discretion by law and is
unreviewable. Accordingly, we decline to review Anaya-
Aguilar’s claim that the Board abused its discretion
by denying his motion to reopen proceedings sua sponte.
The petition is D ISMISSED.




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