                                                                                                                           Opinions of the United
2003 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


10-29-2003

Andronikov v. Atty Gen USA
Precedential or Non-Precedential: Non-Precedential

Docket No. 02-3402




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                                                   NOT PRECEDENTIAL

       UNITED STATES COURT OF APPEALS
            FOR THE THIRD CIRCUIT

                  _______________

                    No: 02-3402
                  _______________

              VIKTOR ANDRONIKOV,

                             Petitioner

                           v.


     JOHN ASHCROFT, ATTORNEY GENERAL
           OF THE UNITED STATES,

                             Respondent

                   _______________

       On Petition for Review of an Order of the
            Board of Immigration Appeals
                (Board No. A73-050-199)



      Submitted Under Third Circuit LAR 34.1(a)
                on September 4, 2003


Before: SLOVITER, NYGAARD and ROTH, Circuit Judges


           (Opinion filed: October 29, 2003)
ROTH, Circuit Judge:


        Viktor Andronikov seeks review of an August 2, 2002, order of the Board of

Immigration Appeals (BIA), affirming without opinion the decision of the Immigration

Judge to deny Andronikov’s motion to reopen removal proceedings. The Immigration and

Naturalization Service (INS) instigated removal proceedings against Andronikov in

August of 1996. On January 2, 1997, Andronikov, represented by his former attorney,

conceded his deportability and applied for asylum, withholding of deportation, and

voluntary departure. Following withdrawal of his applications for asylum and withholding

of departure, Andronikov’s application for voluntary departure was granted until June 15,

1998.

        One week before his scheduled departure date, Andronikov filed a motion to

reopen his proceedings with the Immigration Judge. As grounds for such, Andronikov

claimed his former counsel was ineffective as she coerced him into withdrawing his

applications for asylum and withholding of deportation. In addition, Andronikov claimed

the enactment of a more restrictive religious law in Russia permitted him to reopen his

immigration proceedings. On June 29, 1998, the Immigration Judge denied Andronikov’s

motion to reopen, noting that the motion was untimely and citing failure to demonstrate

that Andronikov’s former counsel was ineffective. Andronikov alleges that the

Immigration Judge abused his discretion by failing to invoke his sua sponte authority to

reopen the case where, due to ineffective assistance of Andronikov’s prior counsel, the

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withdrawal of the application for asylum was neither informed nor voluntary.

       An Immigration Judge’s decision whether or not to invoke sua sponte authority is

committed to his or her unfettered discretion. The nature of such a claim, therefore,

renders it non-reviewable. The regulation providing sua sponte reopening authority states

that an Immigration Judge “may upon his or her own motion at any time, or upon motion

of the Service or the alien, reopen or reconsider any case in which he or she has made a

decision, unless jurisdiction is vested with the Board of Immigration Appeals.” 8 C.F.R. §

3.23 (b)(1). The regulation goes on to state that an Immigration Judge “has discretion to

deny a motion to reopen even if the moving party has established a prima facie case for

relief.” Id. at § 3.23 (b)(3).

       Courts do not have jurisdiction to review matters “committed” to the agency’s

discretion, including situations where the governing statute “is drawn so that a court would

have no meaningful standard of review against which to judge the agency’s exercise of

discretion.” Calle-Vujiiles, 320 F.3d at 474; Heckler v. Chaney, 470 U.S. 821 (1985). The

reason for this lack of jurisdiction is due to the fact that “if no judicially manageable

standards are available for judging how and when an agency should exercise its discretion,

then it is impossible to evaluate agency action for ‘abuse of discretion.’” Heckler, 470

U.S. at 830. In Calle-Vuijiles v. Ashcroft, we held that when the BIA declines to exercise

its sua sponte power under an analogous statute, that decision is not reviewable. 320 F.3d

472, 475 (3rd Cir. 2003).



                                               3
       By its express terms, the regulation here commits the power to reopen sua sponte to

the Immigration Judge’s unfettered discretion. Moreover, it sets forth no meaningful

criteria for determining when that power should be exercised. Because the Immigration

Judge retains unfettered discretion in deciding whether or not to reconsider or reopen a

deportation proceeding, we lack jurisdiction to review a decision declining to do so.

       For the above reasons, the petition for review will be dismissed for lack of appellate

jurisdiction.




                                             4
TO THE CLERK:

    Please file the foregoing Opinion.


                                         By the Court,


                                         /s/ Jane R. Roth
                                         Circuit Judge




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