                  NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
                             File Name: 14a0455n.06

                                          No. 12-4237



                          UNITED STATES COURT OF APPEALS
                               FOR THE SIXTH CIRCUIT

                                                )                                   FILED
                                                )                             Jun 25, 2014
JOSE LISBOA, JR.,                               )                         DEBORAH S. HUNT, Clerk
                                                )
         Petitioner,                            )
                                                )    ON PETITION FOR REVIEW FROM
v.                                              )    THE UNITED STATES BOARD OF
                                                )    IMMIGRATION APPEALS
ERIC H. HOLDER, JR., Attorney General,          )
                                                )
         Respondent.                            )




         BEFORE: COOK, DAUGHTREY, and WHITE, Circuit Judges.

         MARTHA CRAIG DAUGHTREY, Circuit Judge. The petitioner, Jose S. Lisboa, Jr.,

seeks review of a decision by the Board of Immigration Appeals denying his motion to reopen

removal proceedings.     An immigration judge ordered Lisboa, then legally in the country,

removed on the basis of a conviction in state court. After his removal, a state appellate court

vacated Lisboa’s conviction on the basis of a substantive defect in his plea agreement with the

state.   An immigration judge subsequently granted Lisboa’s motion to reopen his removal

proceedings, but the Board reversed this decision twice; first, on the basis of a then-existing

regulatory bar against motions to reopen by aliens outside the country and, then, after a reversal

and remand by this court, upon a finding that Lisboa’s circumstances were not adequately
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exceptional to warrant an exercise of the Board’s so-called sua sponte authority. Because the

Board refused to consider Lisboa’s request for equitable tolling of his statutory motion to reopen,

and because the Board offered no rational explanation for this ruling, we grant the petition for

review, reverse, and remand to allow the Board to address that question in the first instance.

                     FACTUAL AND PROCEDURAL BACKGROUND

        Petitioner Lisboa is a Brazilian national. He immigrated to the United States in 1971,

when he was seven years old and later became a lawful permanent resident. In 1994, he married

a United States citizen, Kimberly Lisboa, with whom he has one child.

        Lisboa’s legal troubles began when he and his wife filed for divorce. The divorce swiftly

became acrimonious, as the two wrestled over control of their successful, jointly-owned business

and over custody of their daughter.       In May 2004, during the pendency of the divorce

proceedings, a grand jury indicted Lisboa for conspiracy to commit felonious assault, conspiracy

to possess drugs, and possession of criminal tools. In September 2004, Lisboa entered into a

plea agreement in which he agreed to plead guilty to reduced charges – one misdemeanor count

of aggravated assault and one felony count of domestic violence. The agreement was unusual in

one important respect: It purported to settle the immigration consequences of Lisboa’s conviction

without the involvement of federal immigration authorities. In exchange for the reduction in

charges, Lisboa agreed to “surrender his green card, waive extradition, [ ] leave the United States

within 45 days of the date of the plea [and] not [ ] enter or apply for reentry into the United

States for a minimum of ten years.” Lisboa also agreed to a ten-year period of community

control and a no-contact order regarding his wife and daughter.

        Unsurprisingly, the federal immigration authorities did not consider themselves bound by

Lisboa’s plea agreement and, before the expiration of the 45-day departure period, the




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Department of Homeland Security served Lisboa with a Notice to Appear, charging him with

removability on the basis of his Ohio convictions. Lisboa denied removability, sought release on

bond, and requested cancellation of removal. Concluding that both of Lisboa’s convictions

constituted “crimes involving moral turpitude,” the immigration judge denied bond and ordered

Lisboa detained for the duration of his removal proceedings. After a two-day hearing in which

Kimberly Lisboa testified against her former husband, the immigration judge found Lisboa

removable and denied his application for cancellation.

        Lisboa appealed the immigration judge’s removal and cancellation orders to the Board,

but withdrew the appeal on May 18, 2005, stating that he “wishe[d] to depart the United States as

soon as possible.” The Board accepted the withdrawal, and Lisboa left the United States for

Brazil on June 17, 2005.

        Once in Brazil, Lisboa launched an aggressive campaign to vindicate himself in the

United States courts. He hired private investigators to probe the circumstances of his original

Ohio state conviction and eventually secured an affidavit from the state’s chief witness against

him, in which the witness admitted to fabricating evidence at the behest of Lisboa’s then-wife.

Armed with this new information, Lisboa brought a post-conviction motion in Ohio state court.

The trial court denied all relief, but the Ohio Court of Appeals reversed, finding that Lisboa’s

ten-year community-control sentence exceeded the five-year statutory maximum. As “neither

the state, the defense, nor the court can agree to a sentence not provided by law,” the court found

that this error “render[ed] the attempted sentence a nullity or void . . . [placing] the parties [ ] in

the same position as if there had been no judgment.” State v. Lisboa, No. 89283, 2008 WL

384141, at *2-3 (Ohio Ct. App. Feb. 14, 2008). The Ohio Court of Appeals expressed no

opinion regarding Lisboa’s allegations of evidence-fabrication.




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        Following the vacatur of his state conviction, Lisboa returned to immigration court on

April 10, 2008, with a motion to reopen his removal proceedings and vacate the order of

removal. Lisboa moved to reopen pursuant to 8 U.S.C. § 1229a(c)(7) or, in the alternative,

under the immigration judge’s sua sponte authority, as authorized by 8 C.F.R. § 1003.23(b). The

immigration judge denied the motion for statutory reopening but agreed that Lisboa’s case

presented the kind of “extraordinary circumstance” that warranted reopening the proceedings sua

sponte. In so holding, the immigration judge relied on the Board’s decisions in In re Rodriguez–

Ruiz, 22 I. & N. Dec. 1378 (B.I.A. 2000), and In re Adamiak, 23 I. & N. Dec. 878 (B.I.A. 2006),

for the proposition that the state court judgment vacating Lisboa’s conviction was entitled to full

faith and credit and that, because it was based on substantive defects in the underlying

proceedings (rather than done just for immigration or rehabilitative purposes), the vacatur was

also effective for immigration purposes. Accordingly, the immigration judge granted Lisboa’s

motion to reopen, terminated the removal proceedings, and vacated the order of removal.

        The government appealed to the Board, which, on November 20, 2009, sustained the

government’s position and reversed the immigration judge. It relied on the so-called “post-

departure bar,” a regulation barring the reopening of immigration proceedings of any non-citizen

outside the physical borders of the United States. See 8 C.F.R. §§ 1003.2(d) (bar applicable to

Board), 1003.23(b)(1) (bar applicable to immigration judge). The Board also noted that Lisboa’s

“case does not present the sort of ‘extraordinary circumstances’ that would justify [sua sponte

reopening].”

        Lisboa timely sought review in this court and, in Lisboa v. Holder, 436 F. App’x 545 (6th

Cir. 2011), we granted relief. We found the Board’s reliance on the post-departure bar improper

in light of our then-recent decision in Pruidze v. Holder, in which we struck down the post-




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departure bar regulation as contradicting “clear [statutory] language giving the Board jurisdiction

over all motions to reopen” without regard to the physical location of the petitioner. 632 F.3d

234, 240 (6th Cir. 2011) (emphasis added); Lisboa, 436 F. App’x at 550-51. As such, we

determined that the “BIA cannot disclaim jurisdiction on the ground that the alien is outside the

United States, which is the basis for the BIA’s decision here.” Lisboa, 436 F. App’x at 551. We

remanded the case with instructions that “the BIA must exercise its jurisdiction to determine

whether or not to uphold the reopening, whether the reopening is considered to be on Lisboa’s

motion or sua sponte.” Id.

        Back before the Board, Lisboa again defended the immigration judge’s decision to

reopen sua sponte and, again, argued that he was entitled to file a motion to reopen as of right

pursuant to 8 U.S.C. § 1229a(c)(7).       Although acknowledging that a motion for statutory

reopening must be made within 90 days of a final order of removal, Lisboa contended that he

was entitled to have the 90-day limit equitably tolled during the time he had spent challenging

his state court conviction.

        Unpersuaded by this argument, the Board re-affirmed its original decision. It began by

finding Lisboa’s situation insufficiently “extraordinary” to justify sua sponte reopening.

Although the Board acknowledged that it had “previously sua sponte reopened proceedings in

similar circumstances,” it insisted that those decisions did not compel a similar result in Lisboa’s

case. Instead, the Board noted that it “decides each of its cases on its own particular set of

circumstances and facts.”

        In a footnote, the Board also observed that it was declining to consider Lisboa’s argument

for statutory reopening. Lisboa had requested the Board for equitable tolling of the 90-day

limitations period from the time his final order of removal took effect. In briefing before the




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Board, however, Lisboa incorrectly asserted that this event occurred on June 17, 2005, which

was the date Lisboa left the country. In fact, the order of removal had become administratively

final 119 days earlier, when the immigration judge ordered Lisboa removed on February 18,

2005. See 8 C.F.R. § 1003.4 (when a non-citizen appeals an order of removal, then withdraws

that appeal, limitations period begins to run from date of immigration judge’s order). Because

more than 90 days elapsed between the immigration judge’s February order of removal and

Lisboa’s actual June departure from the country, the Board reasoned, the equitable tolling Lisboa

requested would be “unavailing” even if granted.

                                         DISCUSSION

Standard of Review

        We have jurisdiction to review final orders of removal (including final orders denying

motions for reopening) under 8 U.S.C. §§ 1252(a)(5), 1229a(c)(7). The Board’s decision to

grant or deny a motion to reopen as of right under 8 U.S.C. § 1229a(c)(7) is reviewed for abuse

of discretion. Kucana v. Holder, 558 U.S. 233, 242 (2010); Haddad v. Gonzales, 437 F.3d 515,

517 (6th Cir. 2006). Such an abuse occurs if the denial of a statutory motion to reopen “was

made without a rational explanation, inexplicably departed from established policies, or rested on

an impermissible basis such as invidious discrimination against a particular race or group.”

Haddad, 437 F.3d at 517. Although questions of law are generally subject to de novo review,

id., Congress has placed certain administrative decisions made in the course of immigration

proceedings outside the jurisdiction of the Courts of Appeal – these cannot be reviewed

according to any standard. See 8 U.S.C. § 1252(a)(2); 5 U.S.C. § 701(a).




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Reopening of Removal Proceedings

        The dispositive issue is whether Lisboa may move to reopen removal proceedings outside

the 90-day time limit prescribed by statute and regulation. See 8 U.S.C. § 1229a(c)(7)(C)(i); 8

C.F.R. § 1003.2(c)(2). “A motion to reopen is a form of procedural relief that asks the Board to

change its decision in light of newly discovered evidence or a change in circumstances since the

hearing.” Dada v. Mukasey, 554 U.S. 1, 12 (2008) (internal citations omitted). Although finality

in removal proceedings is an important goal of the immigration system, see Zhang v. Mukasey,

543 F.3d 851, 855 (6th Cir. 2008), the opportunity for non-citizens to reopen proceedings

remains “an ‘important safeguard’ intended ‘to ensure a proper and lawful disposition’ of

immigration proceedings.” Kucana, 558 U.S. at 242 (quoting Dada, 554 U.S. at 18).

        As noted above, a non-citizen seeking to reopen his removal proceeding has two avenues

available to him. First, he may file a motion to reopen as a matter of right, pursuant to 8 U.S.C.

§ 1229a(c)(7) and 8 C.F.R. § 1003.2(c). Such a “statutory” or “on motion” request for reopening

must satisfy several threshold requirements, including its filing within 90-days of the final order

of removal. 8 U.S.C. § 1229a(c)(7)(C)(i). Alternatively, and regardless of how much time has

passed since the final order of removal, a petitioner may ask the immigration judge or the Board

“at any time [to] reopen or reconsider on its own motion any case in which it has rendered a

decision.” 8 C.F.R. §§ 1003.2(a) (granting power to Board), 1003.23(b)(1) (granting power to

immigration judge).    This procedure is known as sua sponte reopening and, for the large

numbers of non-citizens unable to meet the statute’s 90-day time limit, it is their only avenue for




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relief.1 See Rachel E. Rosenbloom, Remedies for the Wrongly Deported: Territoriality, Finality,

and the Significance of Departure, 33 U. Haw. L. Rev. 139, 174 (2010).

        We review the denial of a statutory motion to reopen for abuse of discretion. Kucana, 558

U.S. at 250-51. By contrast, “[t]he decision whether to invoke sua sponte authority is committed

to the unfettered discretion of the BIA,” Harchenko v. I.N.S., 379 F.3d 405, 410 (6th Cir. 2004),

and, as such, “the BIA’s determination to forgo the exercise of its sua sponte authority is a

decision that [courts] are without jurisdiction to review.” Barry v. Mukasey, 524 F.3d 721, 723-

24 (6th Cir. 2008).

        Lisboa urges us to review and reverse the Board’s denial of both the statutory and sua

sponte forms of reopening.

The Board’s Refusal to Reopen Sua Sponte

        Lisboa’s request for review of the Board’s sua sponte decision is plainly foreclosed by

this circuit’s precedent. Our decisions in Harchenko and Barry place that question outside our

jurisdiction to review. It may be true, as Lisboa asserts, that the Supreme Court’s decision in

Kucana has cast some doubt on these decisions. We explored these doubts in Gor v. Holder, 607

F.3d 180, 181-193, 196-99 (6th Cir. 2010), and found them substantial. Nevertheless, unless and

until our circuit’s precedent is altered, either by a decision of the Supreme Court or by the court

sitting en banc, it remains binding upon us. We so held in Gor, 607 F.3d at 181-82, and we

reach the same conclusion today. Under this precedent, the propriety of the Board’s denial of

Lisboa’s request for sua sponte relief is not a question that we are authorized to decide.

        Perhaps recognizing this, Lisboa makes an alternative argument. He would have us

follow an approach taken by the Second and Third Circuits. Those courts have held that
        1
           The term “sua sponte reopening” is something of a misnomer because such a procedure is commonly
initiated by a written motion by the non-citizen.




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although the Board’s use of its sua sponte discretion is generally unreviewable, limited judicial

review is still warranted if the Board “has relied on an incorrect legal premise.” See Pllumi v.

Att’y Gen. of U.S., 642 F.3d 155, 163 (3d Cir. 2011); Mahmood v. Holder, 570 F.3d 466, 469 (2d

Cir. 2009). In such a case, the court may “remand to the BIA so it may exercise its authority

against the correct ‘legal background.’” Pllumi, 642 F.3d at 160, 163 (quoting Mahmood,

570 F.3d at 469). Insofar as its decisions rest on the proper legal basis, however, the Board’s

exercise of its sua sponte authority remains discretionary under both Pllumi, 642 F.3d at 160, and

Mahmood, 570 F.3d at 471.

        Lisboa suggests that adopting this reasoning would allow us to review the legal basis of

the Board’s decision without calling into question our rulings in Gor, Barry, or Harchenko. This

question is one we need not answer here, however, because Lisboa does not identify what

“incorrect legal premise” he would have this court correct.

Statutory Reopening and Equitable Tolling

        Lisboa also urges us to treat his request for reopening as an as-of-right statutory motion

under 8 U.S.C. § 1229a(c)(7). Although the motion was obviously filed far beyond the 90-day

statutory limitations period, Lisboa contends that it may still be considered timely under the

doctrine of equitable tolling. The Board refused to consider the equitable tolling argument

because Lisboa had misidentified the date on which his order of removal became

administratively final. Lisboa claims that this constitutes both an abuse of discretion and a

failure to follow the remand instructions from our previous decision in this case. We agree and

therefore find it necessary to remand the petition to the Board to allow it to follow our earlier

instructions and consider the merits of Lisboa’s statutory reopening request.




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        Our circuit “applie[s] the doctrine of equitable tolling to otherwise time-barred motions to

reopen” if certain equitable conditions are met. Barry, 524 F.3d at 724. “Strictly defined,

equitable tolling is the doctrine that the statute of limitations will not bar a claim if the plaintiff,

despite diligent efforts, did not discover the injury until after the limitations period had expired.”

Barry, 524 F.3d at 724 (internal brackets omitted) (quoting Tapia-Martinez v. Gonzales,

482 F.3d 417, 422 (6th Cir. 2007)). Our approach to equitable tolling seeks to balance the

equities for and against the petitioner through application of a five-factor test. See Barry, 524

F.3d at 724; Mezo v. Holder, 615 F.3d 616, 620 (6th Cir. 2010). But in this case, the Board did

not consider the merits of Lisboa’s tolling argument under that or any other test – instead, the

Board brushed aside the tolling argument on the basis of Lisboa’s error in calculating the date on

which his removal order became final.

        We believe this ruling constituted an abuse of discretion because the miscalculated date is

not an adequate basis on which to deny Lisboa relief, particularly in light of our prior remand

instruction to the contrary. Although the error in the date introduced a degree of confusion into

Lisboa’s position before the Broad, the thrust of Lisboa’s argument was obvious, and the Board

should have reached its merits. Lisboa used the correct legal term to describe the beginning

point for his requested equitable tolling period, i.e., the “date of entry of a final administrative

order,” but he identified an incorrect date for this event. In this situation, the Board had two

possible avenues for resolving the inconsistency: It could assume that Lisboa did in fact desire

equitable tolling to begin from his “final administrative order” (and explain the accompanying

June date as a simple ministerial error). Or the Board could ignore Lisboa’s references to a

“final administrative order” and, instead, treat the June date as defining the scope of Lisboa’s

desired relief.




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        In the context of Lisboa’s situation, the first construction is obviously the intended one:

It is the only interpretation of Lisboa’s request for reopening that is both internally coherent and

rationally related to the immigration relief Lisboa seeks. By contrast, in ignoring the legally

operative language Lisboa used, the second construction renders the argument pointless in a way

that its author could not have intended. Yet, it is exactly this implausible reading that the Board

selected. In so doing, the Board interpreted Lisboa’s request in a way that rendered it incoherent

and, then, relied on that incoherence as justification for dismissing the argument without

considering its substance. It provided no explanation for this decision, let alone the “rational

explanation” our precedent requires. See Yu Yun Zhang v. Holder, 702 F.3d 878, 879 (6th Cir.

2012). As a result, we can only conclude that the Board’s decision constituted an abuse of

discretion, especially in light of our specific direction to the Board to consider the issue on

remand. Lisboa, 436 F. App’x at 551. Accordingly, “the proper course . . . is to remand to the

agency for additional investigation or explanation.” Ward v. Holder, 733 F.3d 601, 609 (6th Cir.

2013) (quoting I.N.S. v. Orlando Ventura, 537 U.S. 12, 16 (2002)).

        Finally, we note that the government makes various substantive arguments opposing

equitable tolling. These arguments are not properly before this court, however, because they

formed no part of the Board decision under review. Daneshvar v. Ashcroft, 355 F.3d 615, 626

(6th Cir. 2004) (“The Board’s denial of [a motion to reopen] may be affirmed only on the basis

articulated in the decision and this Court may not assume that the Board considered factors that it

failed to mention in its opinion.”). Of course, the government will be entitled to raise these

arguments before the Board on remand.




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Participation of Amicus Curiae in Proceedings Before the Board

        Lisboa raises a final argument, involving what he contends to be the improper

involvement of amicus curiae in proceedings before the Board. In this case, the amici were

Kimberly Lisboa (petitioner’s ex-wife) and the former government attorney who had prosecuted

Lisboa’s removal during the 2005 proceedings; they opposed Lisboa’s attempts to reopen his

proceedings. Our understanding of this issue is necessarily one-sided, given that amici have had

no opportunity to respond to Lisboa’s allegations of impropriety. We do note, however, that

serious ethical issues may arise when a former government lawyer seeks to influence

proceedings in which, during his time in government service, “he participated personally and

substantially.” 18 U.S.C. § 207; see 5 C.F.R. §§ 2641.201(a); (h)(1), example 2. Whatever the

merits of Lisboa’s objections, however, he raised them for the first time in his reply brief and,

thus, too late. See United States v. Demjanjuk, 367 F.3d 623, 637 (6th Cir. 2004).

                                          CONCLUSION

        For these reasons, we dismiss in part and grant in part the petition for review. We

remand the case to the Board to allow it to decide, in the first instance, the merits of Lisboa’s

argument for equitable tolling of his statutory motion to reopen.




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