          United States Court of Appeals
                     For the First Circuit


No. 18-1823

                    RICHARD MARVIN THOMPSON,

                          Petitioner,

                               v.

                        WILLIAM P. BARR,
                UNITED STATES ATTORNEY GENERAL,

                          Respondent.


               PETITION FOR REVIEW OF AN ORDER OF
                THE BOARD OF IMMIGRATION APPEALS


                             Before

                Torruella, Thompson, and Barron,
                         Circuit Judges.


     Gregory Romanovsky, with whom Romanovsky Law Offices was on
brief, for petitioner.
     William M. Tong, Attorney General of Connecticut, with whom
Jane Rosenberg, Assistant Attorney General, and Clare Kindall,
Solicitor General, were on brief, as amicus curiae for the State
of Connecticut.
     Trina Realmuto, Kristin Macleod-Ball, Emma Winger, and
American Immigration Council, as amicus curiae for the American
Immigration Council.
     Jessica E. Burns, Senior Litigation Counsel, Office of
Immigration Litigation, Civil Division, U.S. Department of
Justice, with whom Joseph H. Hunt, Assistant Attorney General,
Civil Division, and Keith I. McManus, Assistant Director, Office
of Immigration Litigation, were on brief, for respondent.
May 21, 2020




    -2-
            TORRUELLA, Circuit Judge.         Petitioner Richard Marvin

Thompson ("Thompson") appeals the Board of Immigration Appeals'

("BIA") denial of his motion to reopen sua sponte his immigration

proceedings, alleging that the BIA committed a clear legal error.

Thompson asks this Court to exercise jurisdiction to review whether

the BIA clearly erred when it determined that he was not entitled

to relief from deportation under section 237(a)(2)(A)(vi) of the

Immigration and Nationality Act ("INA"), 8 U.S.C. § 1227(a)(2)

(A)(vi) (the "Pardon Waiver Clause"), because a pardon issued by

the Connecticut Board of Pardons and Paroles is "not effective for

purposes of establishing entitlement to" a waiver of deportation.

Because we find that this Court has jurisdiction to review this

colorable legal question and because, here, the BIA departed from

its settled course of adjudication, we vacate the decision of the

BIA   and   remand   for    further   proceedings   consistent   with   this

opinion.

                                      I.

            Thompson is a citizen of Jamaica.         In 1997, at the age

of fourteen, he was admitted to the United States as a lawful

permanent resident.        When he was seventeen years old, Thompson was

arrested and charged with second-degree assault, a felony in

violation of Connecticut General Statute § 53a-60, to which he

pleaded guilty in Connecticut state court in 2001.          He received a


                                      -3-
suspended sentence and three years' probation.                Without incident,

Thompson completed the terms of his probation, received his GED,

and worked for over ten years as a commercial operator.

               Based on his 2001 conviction, in March 2012, the United

States     Department       of    Homeland       Security   initiated      removal

proceedings against Thompson charging him as removable pursuant

to: (1) 8 U.S.C. § 1227(a)(2)(A)(i), for having committed a crime

of moral turpitude within five years after admission and for which

a term of imprisonment of one year or more could be imposed; and

(2)   8    U.S.C.     § 1227(a)(2)(A)(iii),        for   having   committed      an

aggravated felony.          Prior to his deportation hearing, Thompson

applied to the United States Citizenship and Immigration Services

("USCIS") for derivative citizenship through his U.S.-citizen

father.        USCIS denied the application, and an Immigration Judge

adopted the USCIS's reasoning, later affirmed by the BIA and this

Court     in    Thompson    v.    Lynch,    that   Thompson    did   not    derive

citizenship from his father because Thompson's parents had never

been legally married and were thus never legally separated as

required by 8 U.S.C. § 1432(a) (repealed 2000).                See Thompson v.

Lynch, 808 F.3d 939, 940-41 (1st Cir. 2015). Thompson subsequently

filed two unsuccessful motions to reopen with the BIA.

               On   March   14,   2018,    detained   and   appearing      pro   se,

Thompson filed the present motion to reopen and terminate his


                                           -4-
removal proceedings.          Thompson's motion requested that the BIA

exercise its sua sponte authority to reopen proceedings because he

had been granted a full and unconditional pardon by the Connecticut

Board of Pardons and Paroles for his 2001 conviction, qualifying

him for relief under the Pardon Waiver Clause.

              On August 7, 2018, the BIA denied the motion.                 The BIA

found Thompson's motion untimely and number-barred, see 8 C.F.R.

§ 1003.2(c),       and    "decline[d]      to    exercise     [its]   sua    sponte

authority."      The BIA explained that Thompson had failed to show

that he was eligible for a pardon waiver, which would otherwise

automatically waive his removability.                The BIA acknowledged that

it   "h[as]    long      recognized     that    in   some   states,   the   supreme

pardoning power may rest with some other executive body," but that

"the [Connecticut] Board of Pardons and Paroles is a legislatively

derived body."        Therefore, it reasoned that "even though the Board

of   Pardons    and      Paroles   is    the     supreme    pardoning   power    in

Connecticut, that power is not executively derived, and so it is

not effective for purposes of establishing entitlement to [a pardon

waiver under] section 237(a)(2)(A)(vi) of the [INA]."                       The BIA

added that Thompson's uncertified photocopy of his pardon failed

to   meet   "his    heavy    burden"     for    reopening.      Thompson     timely

appealed.




                                         -5-
                                    II.

A. Standard of Review and Jurisdiction

            We   begin   by   addressing    our   jurisdiction   to   review

Thompson's claim that the BIA committed legal error when it denied

his motion to reopen sua sponte.       We first note that "a motion to

reopen removal proceedings is a disfavored tool."                Gyamfi v.

Whitaker, 913 F.3d 168, 172 (1st Cir. 2019) (quoting Mazariegos v.

Lynch, 790 F.3d 280, 285 (1st Cir. 2015)).          To the extent we have

jurisdiction, we generally review the BIA's decision on a motion

to reopen for abuse of discretion.         Id.; see 8 U.S.C. § 1252(a)(1),

(a)(5).    An abuse of discretion occurs if the BIA "committed an

error of law or exercised its judgment in an arbitrary, capricious,

or irrational way."      Cabas v. Barr, 928 F.3d 177, 181 (1st Cir.

2019) (quoting Xue Su Wang v. Holder, 750 F.3d 87, 89 (1st Cir.

2014)).    Within this deferential framework, "[w]e review questions

of law de novo."     Bolieiro v. Holder, 731 F.3d 32, 36 (1st Cir.

2013) (alterations ours).

            The BIA possesses discretionary authority to grant or

deny a motion to reopen pursuant to 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

                                    -6-
        motion to reopen even if the party moving has made
        out a prima facie case for relief.

8 C.F.R. § 1003.2(a).

              Until Congress enacted the Illegal Immigration Reform

and Immigrant Responsibility Act of 1996 ("IIRIRA"), Pub. L. No.

104–208, Div. C., 110 Stat. 3009–546, there were no time limits

for requesting the reopening of immigration proceedings.                     By

instituting      time      limits   and     number     restrictions,    IIRIRA

"transform[ed] the motion to reopen from a regulatory procedure to

a statutory form of relief available to the alien."                  Kucana v.

Holder, 558 U.S. 233, 249 (2010) (alteration in original) (quoting

Dada v. Mukasey, 554 U.S. 1, 14 (2008)).             The statute codified the

right to file one motion to reopen within ninety days of the date

of entry of a final order of removal, with a few narrow exceptions.

See 8 U.S.C. § 1229a(c)(7)(A), (c)(7)(C)(i).              A motion to reopen

that comports with the time and number requirements is subject to

judicial review under the standard laid out above.              See Guerrero

v. Holder, 766 F.3d 122, 126 (1st Cir. 2014).

              When a motion falls outside of the timing and number

restrictions imposed by IIRIRA and does not fit into one of the

statutory exceptions, the only way for the petitioner to reopen

proceedings is to request that the BIA reopen them sua sponte,

i.e.,   "on    its   own    motion"   (nomenclature      that   we   admit   is

confusing).      See Lemus v. Sessions, 900 F.3d 15, 18 (1st Cir.

                                      -7-
2018) (citing 8 C.F.R § 1003.2(a)); Bonilla v. Lynch, 840 F.3d

575, 585 (9th Cir. 2016).        The BIA will only grant a motion sua

sponte if it is "persuaded that the respondent's situation is truly

exceptional."     In re G–D–, 22 I. & N. Dec. 1132, 1134 (B.I.A.

1999).

             In Luis v. INS, we held that we lacked jurisdiction to

review the BIA's decision on a motion to reopen sua sponte "because

the decision of the BIA whether to invoke its sua sponte authority

is committed to its unfettered discretion."            196 F.3d 36, 40 (1st

Cir. 1999).      This is because, in the absence of "judicially

manageable    standards,"   we   "would   have    no   meaningful   standard

against which to judge the agency's exercise of discretion."             Id.

(quoting Heckler v. Chaney, 470 U.S. 821, 830 (1985)).                   See

5 U.S.C. § 701(a)(2) (disallowing judicial review of agency action

when said action "is committed to agency discretion by law").             We

have affirmed this general rule from Luis many times.           See Gyamfi,

913 F.3d at 176; Reyes v. Sessions, 886 F.3d 184, 188 (1st Cir.

2018); Ramírez-Matías v. Sessions, 871 F.3d 65, 68 (1st Cir. 2017);

Guerrero, 766 F.3d at 126; Neves v. Holder, 613 F.3d 30, 35 (1st

Cir.   2010).     Still,    we   have   never    decisively   answered   the

questions presented here: whether this Court has jurisdiction to

review motions to reopen sua sponte for the limited purpose of

rectifying legal or constitutional errors by the BIA about whether


                                    -8-
it has the authority to exercise its discretion or whether 8 U.S.C.

§ 1252(a)(2) allows this Court to assert jurisdiction over a

challenge to such an error, because it is a legal one.              See Lemus,

900 F.3d at 19.       Let us explain.

          In 2005, several years after we announced our holding in

Luis, Congress passed the REAL ID Act of 2005, Pub. L. No. 109-13,

119 Stat. 302.    See Ramírez-Matías, 871 F.3d at 68.             While IIRIRA

had   earlier    barred    judicial      review    of    "most   discretionary

decisions or actions of the Attorney General and Secretary of

Homeland Security . . . under a particular statutory subchapter,"

Bonilla, 840 F.3d at 587 (citing 8 U.S.C. § 1252(a)(2)(B)(ii)),

the REAL ID Act clarified:

        Nothing in subparagraph (B) or (C), or in any other
        provision of this chapter (other than this section)
        which limits or eliminates judicial review, 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 in
        accordance with this section.


8 U.S.C. § 1252(a)(2)(D).           Thereby, denials of discretionary

relief, 8 U.S.C. § 1252(a)(2)(B), and final orders of removal

against criminal aliens, 8 U.S.C. § 1252(a)(2)(C), were explicitly

made reviewable when the petitioner raised constitutional claims

or questions of law.

          It     is    clear   to   us      that   the   plain   language   of

§ 1252(a)(2)(D) evidences congressional intent to render purely

                                      -9-
discretionary decisions reviewable for legal error.          This suggests

that Congress did not intend such decisions to evade review simply

because they are discretionary.           On the contrary, § 1252(a)(2)(D)

suggests that when the BIA makes a discretionary decision on the

basis of a legal rationale, there is law for the court to apply,

and it is the duty of a reviewing court to do so.                  Therefore,

while the rule we announced in Luis generally still holds (i.e.,

in the absence of a meaningful legal standard, we lack jurisdiction

to review the BIA's decision of whether to reopen a case sua

sponte), § 1252(a)(2)(D) acknowledges that sometimes there are

judicially manageable standards to apply even when the relief

sought is purely discretionary -- as is the case with motions to

reopen sua sponte.

           By its terms, § 1252(a)(2)(D) states that no provision

of Chapter 12 of Title 8 of the INA limiting judicial review shall

be   construed   to     deprive   the    appropriate   appellate    court   of

jurisdiction     over    legal    and   constitutional   challenges.        The

provision furnishing the Attorney General with the authority to

create the regulations that provide for sua sponte reopening is

located within INA Chapter 12.           See 8 U.S.C. § 1103(a); see also

Kucana, 558 U.S. at 254 (Alito, J., concurring) ("[I]t seems clear

that § 1003.2, at least insofar as it gave the Attorney General

the discretionary authority that he exercised in this case, is


                                        -10-
grounded on authority conferred under Subchapter I of Chapter 12

of Title 8." (emphasis removed)).1          There would seem to be a strong

argument that motions to reopen, even of the sua sponte nature,

come within the scope of § 1252(a)(2)(D).

           While this Court has thus far avoided deciding whether

§ 1252(a)(2)(D) allows courts of appeals to conduct a limited

review of the BIA's decisions on motions to reopen sua sponte,

several other circuits have found that it does.           See Bonilla, 840

F.3d at 587 ("The recognition in § 1252(a)(2)(D) that legal or

constitutional issues are reviewable even when the statute makes

the underlying decision discretionary is reflective of a general

recognition that there is no preclusion of such review if otherwise

ordinarily available."); Salgado-Toribio v. Holder, 713 F.3d 1267,

1271   (10th   Cir.   2013)   ("We   do     have   jurisdiction   to   review

'constitutional claims or questions of law' raised in a petition

for review." (quoting 8 U.S.C. § 1252(a)(2)(D))); Cevilla v.



1  The government's suggestion that judicial review of motions to
reopen sua sponte "circumvent[s] the time and numerical limits
Congress imposed on motions to reopen" strikes more at the
regulation permitting sua sponte reopening, 8 C.F.R. § 1003.2(a),
which predates the codification of 8 U.S.C. § 1229a, rather than
at limited judicial review.    As we are to assume that Congress
legislated with the knowledge of the existing scheme and awareness
that the BIA was authorized to reopen cases beyond the statutory
time and number limits, we are not persuaded that limited judicial
review contravenes congressional intent. See Kucana, 558 U.S. at
239.


                                     -11-
Gonzales, 446 F.3d 658, 660 (7th Cir. 2006) ("[T]he general 'no

law to apply' principle of judicial review of administrative action

has   been    superseded    in   the   immigration        context      by    8    U.S.C.

§ 1252(a)(2), as amended by the REAL ID Act in May 2005."); see

also Nawaz v. Holder, 314 F. App'x 736, 737 (5th Cir. 2009) ("While

we    do     not   have    jurisdiction       to    consider        [petitioner]'s

non-constitutional challenges to the BIA's refusal to reopen his

removal proceedings sua sponte, we retain jurisdiction to consider

constitutional      challenges     that    were    raised       before      the    BIA."

(citing 8 U.S.C. § 1252(a)(2)(D))); Tamenut v. Mukasey, 521 F.3d

1000, 1005 (8th Cir. 2008) (noting jurisdiction generally "over

any colorable constitutional claim").

              Until now, we have deferred answering the question of

jurisdiction in the absence of any colorable constitutional or

legal      challenges.     See   Gyamfi,   913     F.3d    at    177     ("[E]ven     if

§ 1252(a)(2)(D) serves as a basis for jurisdiction, [petitioner]

has not set forth any colorable claims."); Lemus, 900 F.3d at 19

("Section 1252(a)(2)(D) 'only arguably applies to a petitioner's

constitutional or legal challenges if they are colorable' . . .

and the [petitioner]s' are not." (citing Reyes, 886 F.3d at 188));

Ramírez-Matías, 871 F.3d at 69 ("[W]e don't have to decide what to

do about the issue now.          The problems with [petitioner]'s appeal

are titanic, and the jurisdictional question is just the tip of


                                       -12-
the proverbial iceberg." (citation omitted)).         But, decisions on

motions to reopen sua sponte appear to be the sort of decision

that Congress authorized appellate courts to review for legal or

constitutional error via its instruction at § 1252(a)(2)(D) to

construe even discretionary agency decisions authorized by Chapter

12 of Title 8 of the INA as subject to limited judicial review.

           Even   insofar   as   the    government    is   correct   that

§ 1252(a)(2)(D) does not strictly govern, Luis did not hold that

the no-law-to-apply ground for finding no reviewability applied

even in a case in which the BIA gives as its reason for not

exercising its discretion what appears to be a mistaken view of a

legal bar to its exercise of that discretion.        Nor does any of our

post-Luis precedent clearly so hold.        Certainly, the government

identifies no such case.

           Moreover, in accord with the conclusion that we have not

so held, Luis itself cited to Heckler v. Chaney, see Luis, 196

F.3d at 40-41 (quoting Chaney, 470 U.S. at 830-33), which construed

the    committed-to-agency-discretion-by-law            exception     to

reviewability in the Administrative Procedure Act and, in doing

so, explicitly declined to extend its holding to the situation

where an agency declines "to institute proceedings based solely on

the belief that it lacks jurisdiction," see Chaney, 470 U.S. at

833 n.4.   Thus, there is no reason to construe this regulation to


                                 -13-
be   more   resistant     to   review,      especially     given    the       general

presumption of reviewability.              See Kucana, 558 U.S. at 251-52

(applying    the     "presumption         favoring    judicial         review      of

administrative action" to allow review over motions to reopen).

            The    enactment   of    § 1252(a)(2)(D)       and     its    exception

allowing    for    the    review    of    questions   of    law     even      as   to

discretionary decisions by the BIA further supports the conclusion

that it would be wrong to conclude that a court may not review the

BIA's erroneous legal determination that there is a legal barrier

to its granting of a motion to reopen sua sponte.                   Even if that

part of § 1252 does not govern a motion to reopen sua sponte, we

see no reason to construe the provision allowing such motions in

a manner that would permit legal errors regarding the existence of

discretion to grant these motions to be insulated from review when

Congress has made clear that other such legal errors concerning

other   exercises    of   discretion       are   reviewable.     And     we   credit

Thompson with raising a colorable claim of such a legal error.

            Thus, we join the Second, Third, Fifth, Seventh, Eighth,

and Ninth Circuits in holding that we have limited jurisdiction to

review constitutional claims 2 or errors of law that arise in



2   The Fifth and Eighth Circuits have only                    expressed their
jurisdiction as to constitutional challenges.                   See Nawaz, 314
F. App'x at 737; Tamenut, 521 F.3d at 1005.


                                         -14-
motions to reopen sua sponte.3   See, e.g., Pllumi v. Att'y Gen. of

U.S., 642 F.3d 155, 160 (3d Cir. 2011) ("[W]hen presented with a

BIA decision rejecting a motion for sua sponte reopening, we may

exercise jurisdiction to the limited extent of recognizing when

the BIA has relied on an incorrect legal premise."); Mahmood v.

Holder, 570 F.3d 466, 469 (2d Cir. 2009) ("[W]here the Agency may

have declined to exercise its sua sponte authority because it

misperceived the legal background and thought, incorrectly, that

a reopening would necessarily fail, remand to the Agency for

reconsideration in view of the correct law is appropriate.").   We

also note that even one of the two circuits that has held otherwise

has not foreclosed the possibility that review could lie when the

claimed legal error is constitutional in nature.      See Butka v.

U.S. Att'y Gen, 827 F.3d 1278, 1285 (11th Cir. 2016).    We see no

basis, however, for limiting the legal errors regarding a limit on

the BIA's discretion to grant such a motion to those legal errors

that concern the Constitution rather than those that concern the

extent of its legal power more generally.    When the BIA's denial

of a motion to reopen rests on a legal error, it is appropriate to


3  We note that the Sixth and Eleventh Circuits have taken the
opposite tack, finding that there is "simply no law to apply,"
when asked to review motions to reopen sua sponte. Rais v. Holder,
768 F.3d 453, 464 (6th Cir. 2014) (internal quotation marks
omitted); see Butka v. U.S. Att'y Gen., 827 F.3d 1278, 1286 n.7
(11th Cir. 2016).


                                 -15-
"remand to the BIA so it may exercise its authority against the

correct legal background."                 Bonilla, 840 F.3d at 588 (internal

quotation marks omitted) (quoting Pllumi, 642 F.3d at 160).

              The government argues, in protest to our jurisdiction,

that    the   BIA's        decision   with       respect       to   a   motion     to     reopen

"reflect[s] only that in the B[IA]'s judgment the case does not

constitute       a     truly      exceptional        situation"          and       does       "not

necessarily reach[] the merits of any new legal argument."                                    The

government       bases      its    contention       on     a    passage       from      ICC    v.

Brotherhood of Locomotive Engineers, 482 U.S. 270 (1987), but the

Court    there       was    explaining      its    construction          of    a    statutory

provision governing the ICC's "authority to reopen and reconsider

its prior actions," id. at 277, which is not at issue here, and

did not hold that review for legal error would be unavailable to

a   petitioner        whose       motion    to     reopen       was     premised        on    new

developments, id. at 278-280.

              The decision we have been asked to review here reached

the merits of petitioner's claim and announced a legal rule

limiting discretion that we are well-positioned to review.                                     So,

having found jurisdiction over colorable claims of legal error, we

proceed to assess the merits of Thompson's legal argument.




                                            -16-
B. Pardon Waiver Clause

          Thompson's     position     is     that   "the   BIA     based    [its]

discretionary    decision   on   a    misinterpretation       of    the     law."

Thompson received "a full, complete, absolute and unconditional

pardon" for his 2001 conviction from the Connecticut Board of

Pardons and Paroles.     Contained in the same subsection of the INA

as the clauses providing for the deportation of an alien who has

been convicted of certain criminal offenses, see 8 U.S.C. § 1227(a)

(2)(A)(i)-(iv), the Pardon Waiver Clause states that those clauses

        shall not apply in the case          of an alien with respect
        to a criminal conviction if           the alien subsequent to
        the criminal conviction has          been granted a full and
        unconditional pardon by the           President of the United
        States or by the Governor             of any of the several
        States.

Id. § 1227(a)(2)(A)(vi).         A pardon waiver has the effect of

automatically canceling removal.            Here, the BIA confirmed that

Thompson's "pardon would waive his removability" if it qualified

as a pardon under the Pardon Waiver Clause.                But the BIA found

that "even though the [Connecticut] Board of Pardons and Paroles

is the supreme pardoning power in Connecticut, [its] power is not

executively derived, and so it is not effective for purposes of

establishing entitlement to section 237(a)(2)(A)(vi) of the Act[,

the   Pardon    Waiver   Clause]."          Thus,   Thompson's     pardon     was

determined to be "legislative [in] nature."                 Thompson argues,

among other things, that this was a legal error "inconsistent with

                                     -17-
the BIA's settled course of adjudication when interpreting the

Pardon Waiver Clause."

              We start by addressing what is meant by the phrase

"settled course of adjudication."               If an agency, like the BIA,

         announces and follows——by rule or by settled course
         of adjudication——a general policy by which its
         exercise of discretion will be governed, an irrational
         departure from that policy (as opposed to an avowed
         alteration of it) could constitute action that must
         be overturned as "arbitrary, capricious, [or] an abuse
         of   discretion"    within   the   meaning    of   the
         Administrative Procedure Act, 5 U.S.C. § 706(2)(A).

INS v. Yueh-Shaio Yang, 519 U.S. 26, 32 (1996) (alteration in

original) (holding that the INS had not departed from its settled

policy of disregarding entry fraud when it considered eligibility

for a waiver of deportation under 8 U.S.C. § 1251(a)(1)(H)).                   We

have held that when "an administrative agency decides to depart

significantly from its own precedent, it must confront the issue

squarely and explain why the departure is reasonable," the obvious

goal being to avoid arbitrary agency action.               Dávila-Bardales v.

INS, 27 F.3d 1, 5 (1st Cir. 1994) (citing Congreso de Uniones

Indus. de P.R. v. NLRB, 966 F.2d 36, 39 (1st Cir. 1992); Shaw's

Supermarkets, Inc. v. NLRB, 884 F.2d 34, 41 (1st Cir. 1989)).                   A

"zigzag course is not open to an agency when . . . the agency has

failed   to    explain   why   it   is    changing    direction   (or   even   to

acknowledge in the later decision that it is detouring from a

beaten path)."       Dávila-Bardales, 27 F.3d at 5 (citing Shaw's

                                         -18-
Supermarkets, Inc., 884 F.2d at 36).         Instead, an agency is

expected to "apply the same basic rules to all similarly situated

supplicants."   Henry v. INS, 74 F.3d 1, 6 (1st Cir. 1996).

          Thompson charges the BIA with departing from its settled

course of adjudication when interpreting the Pardon Waiver Clause

as its reasoning in this case is inconsistent with prior BIA

decisions accepting Connecticut pardons, as well as functionally

identical pardons issued by the Georgia Board of Pardons and

Paroles, for purposes of the Pardon Waiver Clause.4          He argues

that the BIA's decision was based on a misunderstanding of its own

caselaw interpreting "legislative pardons," which he agrees are

insufficient under the Pardon Waiver Clause.    In reversing course,

Thompson posits, the BIA did not explain why it should matter if

a pardoning board is created by constitution or legislation.

Thompson contends that the BIA, having "constrained its discretion

through a settled course of adjudication" with respect to pardon



4   Participating as amicus curiae,    the     State   of   Connecticut
similarly points to the BIA's

       long history of properly interpreting and applying
       Congress' intent to respect all discretionary and
       individualized executive pardons . . . manifested
       today in the BIA's respect for the wide variety of
       executive pardons granted by states across the country
       . . . [so that] the mistaken interpretation at issue
       here, which uniquely prejudices the state of
       Connecticut and its residents, [is] all the more
       anomalous, puzzling, and unjustifiable.

                               -19-
waivers, acted arbitrarily when it deemed Connecticut pardons

insufficient for purposes of the statute.5

            The     government     counters     the   "settled        course     of

adjudication" argument by pointing out that the BIA "has never

addressed   in     a   published    decision    whether    a    pardon    from   a

legislatively derived body constitutes a pardon for purposes of

the   pardon      waiver"   and    having    "identified       only   a   single,

seventeen-year-old       unpublished    [BIA]    decision"       recognizing     a

Connecticut pardon, see Murphy, BIA A037 412 467 (2002) (deciding

that a pardon from the Connecticut Board of Pardons and Paroles

sufficed to suspend deportation under the Pardon Waiver Clause

because "[t]he B[IA] ha[d] construed the pardon provision . . . to

apply to the supreme pardoning power"),6 Thompson and Amicus Curiae


5  Thompson's argument regarding the settled course of adjudication
is wholly distinguishable from the one rejected in Tamenut, where
the Eighth Circuit found that the BIA's "acknowledge[ment of] the
existence of its authority to reopen sua sponte in what it deems
to be 'exceptional situations' is not sufficient to establish a
meaningful standard for judging whether the BIA is required to
reopen proceedings on its own motion." 521 F.3d at 1005 (citing
Calle-Vujiles v. Ashcroft, 320 F.3d 472, 474-75 (3d Cir. 2003)).
See also Sang Goo Park v. Att'y Gen. of U.S., 846 F.3d 645, 655
(3d Cir. 2017) (confirming that a BIA denial premised on a lack of
exceptional    circumstances   does   not   automatically    confer
jurisdiction for appellate review). Rather, Thompson challenges
the BIA's legal conclusion that "he is [not] entitled to a pardon
waiver," given the BIA's own interpretation of the Pardon Waiver
Clause.
6  Relying on Matter of Nolan, 19 I. & N. Dec. 539, 541-42 (B.I.A.
1988), and Matter of Tajer, 15 I. & N. Dec. 125, 126 (B.I.A. 1974)
-- two cases also cited by the BIA in Thompson's case -- the BIA

                                      -20-
American Immigration Council fail to persuade that the BIA has set

out a contrary policy than the one followed by the BIA here.     We

disagree.

            First, undermining the government's suggestion that the

BIA's decision to accept a Connecticut pardon in Murphy was a

historical anomaly, the BIA decided Walton, BIA A041 657 485

(2019), shortly after this case was argued before us.         In an

unpublished decision, the BIA found "the respondent's pardon by

the Connecticut Board of Pardons and Paroles [to] ha[ve] the effect

of an executive pardon."7     The BIA deemed the circumstances in

Walton, which are almost identical to those presented here, to be

the sort warranting the BIA's exercise of its sua sponte authority.

In that case, the respondent had been found removable in 2012 under

sections 237(a)(2)(A)(ii) and (iii) of the INA, 8 U.S.C. § 1227(a)

(2)(A)(ii) and (iii), following two convictions in Connecticut

state court.   On January 14, 2019, the Connecticut Board of Pardons

and Paroles granted the respondent a full and unconditional pardon

for her prior offenses, and subsequently, the BIA, by way of its

sua sponte authority, reopened and terminated her immigration




in Murphy reached the opposite conclusion as it did here.
7  The BIA denied DHS's request for reconsideration of its decision
on May 12, 2020, affirming that a Connecticut pardon "should be
credited as an executive pardon."


                                -21-
proceedings.        Acknowledging some deference to the Connecticut

Attorney General's view of its own state laws, the BIA in Walton

credited the state's explanation that the respondent's pardon

should be viewed as an "executive pardon" under Connecticut state

law.     The BIA recognized the colonial origin of Connecticut's

pardoning power, which was "originally executive in nature," and

found that since the Governor appoints the Board, see Conn. Gen.

Stat.    § 54-124a(a)(1),      the     "executive   aspect"    of   Connecticut

pardons was "retained."8

            In   response   to    this    recent,   on-point    decision,    the

government, otherwise conceding the similarity between Thompson

and the petitioner in Walton, argues that Walton is unpublished

and non-precedential.       Furthermore, it asserts that "the existence

of   a   'settled    course'     [of    adjudication]   cannot      be   lightly

inferred," citing Menéndez-González v. Barr, 929 F.3d 1113, 1118

(9th Cir. 2019), so Walton does not materially alter things for

Thompson.    In Menéndez-González, the Ninth Circuit found it lacked



8   In Connecticut, the power to pardon resides with the
sovereign -- once the monarch and now the people. See S. Rep. No.
98-R-0255 (Conn. 1998). Although the citizens of Connecticut did
not assign the pardon power in their constitution, Connecticut's
legislature, the General Assembly, retained this power, which had
been formerly enshrined in Connecticut's colonial charter. See id.
Subsequently, in 1883, the General Assembly transferred this power
to the Board of Pardons and Parole. See id.; Palka v. Walker, 198
A. 265, 266 (Conn. 1938).


                                        -22-
jurisdiction to review the denial of a motion to reopen when the

petitioner, claiming that the BIA had departed from its settled

course of adjudication, failed to present a colorable legal or

constitutional question for review.                   Id. at 1119.        There, the

petitioner argued that the BIA often granted motions to reopen sua

sponte    after   the    vacatur     of    the   alien's       conviction,     thereby

"eliminating the discretion that the BIA would otherwise have to

examine the specifics of an individual petitioner's case," and

petitioner    was,   therefore,          entitled     to     the   reopening   of   his

immigration proceedings sua sponte.                       Id. at 1118.     The Ninth

Circuit    clarified      that,     by    citing      a    handful   of   unpublished

decisions, petitioner had failed to allege a pattern by which the

BIA constrained its authority to require it to reopen his case.

Id.   at     1118-19.          We        have    no        trouble    distinguishing

Menéndez-González from the case before us.

             Thompson, relying on several published and unpublished

BIA decisions for support, argues that the BIA's choice here to

find that a Connecticut pardon does not qualify under the Pardon

Waiver Clause was arbitrary and a departure from the BIA's settled

course, not that the BIA is necessarily required to reopen his

case sua sponte.        We agree with the government that two unpublished

BIA decisions do not necessarily evidence a BIA policy that

Connecticut pardons are sufficient for purposes of the Pardon


                                          -23-
Waiver Clause, although we also point out 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."

Dávila-Bardales, 27 F.3d at 5-6; see also id. at 5 ("[T]he prospect

of a government agency treating virtually identical legal issues

differently        in   different     cases,       without    any   semblance       of   a

plausible explanation, raises . . . concerns about arbitrary agency

action . . . .").          Nevertheless, as Thompson clearly argues, the

BIA's practice of accepting pardons from the supreme pardoning

authority in a given state, even if that authority is conferred by

statute, transcends these two cases.                  Cf. Sang Goo Park v. Att'y

Gen. of U.S., 846 F.3d 645, 654 (3d Cir. 2017) ("[O]ne favorable

exercise of discretion does not a settled course make.").

              Thompson     argues,       and   we    agree,    that    the    BIA    has

repeatedly         found    that      the      relevant       distinction      between

"legislative pardons" and "executive pardons" is based on the

nature   of    the      pardon     and    whether     the    pardon    is    conferred

automatically, not whether the source of the pardon authority is

found in statute or the state's constitution.                         Turning to BIA

precedent, it is not difficult to trace the BIA's course of

adjudication on this issue.               It is well-settled BIA policy that

to qualify for a pardon waiver, a full and unconditional pardon


                                            -24-
given   to   an   alien   "must       be    of    an   executive     rather    than   a

legislative nature."            101 A.L.R. Fed. 668 (1991).                   In 1952,

Congress     modified     the    Pardon          Waiver     Clause   to    make   this

distinction.9     In Matter of R--, the BIA addressed the change in

law and found that "Congress ha[d] manifested an express intention

to grant exemption from deportation only to those aliens who have

obtained an executive pardon."               5 I. & N. Dec. 612, 619 (B.I.A.

1954). It concluded that respondent's legislative pardon, obtained

automatically after he completed the punishment for the crime he

was convicted of, did not qualify under the Pardon Waiver Clause.

Id.   (citing     S.   Rep.     No.   81-1515,         at   637   (1950)    (defining

legislative pardons as "pardons under which an alien is pardoned

by operation of law in several States after completion of his

sentence.")).     A few years later in Matter of G--, the BIA further

elucidated its view of the change to the Pardon Waiver Clause,

stating "that Congressional rejection of the legislative pardon

was based on its automatic application to one who had served his

sentence irrespective of the merits of the case."                          9 I. & N.

Dec. 159, 162 n.1 (B.I.A. 1960).                  To the extent the BIA defined

the term executive pardon, it did so by way of its rejection of



9 The Pardon Waiver Clause in effect today, 8 U.S.C. § 1227(a)
(2)(A)(vi), remains substantively the same as the former Section
241(b)(1) of the INA of 1952, 8 U.S.C. § 1251(b)(1).


                                           -25-
automatic pardons issued by operation of law.    Rejection of this

so-called legislative pardon did not depend on whether it was

conferred by statute or constitution.   Compare Matter of R--, 5

I. & N. Dec. at 618-19 (determining that Pennsylvania's pardon

statute, which pardons all who endure the punishment imposed for

a class of crimes, was a "legislative pardon"), with Matter of

Nolan, 19 I. & N. Dec. 539, 544 (1988) (determining that "although

provided for under a state constitution rather than by statute,

[the automatic pardon] is akin to the legislative pardon which

Congress clearly rejected" (emphasis added)).

          Furthermore, in Matter of Nolan, the BIA "recognized the

fact that in some instances, the supreme pardoning power may rest

with an executive or executive body other than the President of

the United States or the Governor of a state."    19 I. & N. Dec.

at 542 (citing Matter of Tajer, 15 I. & N. Dec. 125, 126 (B.I.A.

1974); Matter of K--, 9 I. & N. Dec. 336 (B.I.A. 1961); Matter of

C-R-, 8 I. & N. Dec. 59 (B.I.A. 1958); Matter of D--, 7 I. & N.

Dec. 476 (B.I.A. 1957); Matter of T--, 6 I. & N. Dec. 214 (B.I.A.

1954)).   The BIA cited Matter of Nolan, as well as the long list

of precedent it relies on, with approval in its decision in

Thompson's case.   Yet, taken collectively, these cases exemplify

a BIA policy contrary to the one announced in its decision below,

i.e., that a pardon issued by the supreme pardoning authority in


                               -26-
the state of Connecticut is not effective because the source of

that authority is a statute.      Matter of T--, 6 I. & N. Dec. 214,

serves   as    an   example.   There,   the    BIA    accepted    a   full   and

unconditional pardon by the Governor of Hawaii, despite that

authority being statutorily derived.          Id.    at 215-16.   That "[t]he

pardoning power of the Governor of Hawaii stem[med] from . . .

statutory sources" did not render the pardon legislative.                Id. at

215.

              As Thompson points out, both Matter of D--, 7 I. & N.

Dec. 476, and Matter of Tajer, 15 I. & N. Dec. 125, deal with

pardons from the Georgia State Board of Pardons and Paroles, which

are substantively identical to a Connecticut pardon.                  In Matter

of D--, the BIA determined that "an executive pardon duly granted

by [the] supreme authority" in the state of Georgia, the Georgia

State Board of Pardons and Paroles, satisfied the Pardon Waiver

Clause "limiting the grant of a pardon to the President of the

United States or the Governor of a State."            7 I. & N. Dec. at 477.

The BIA found "it was not the intent of Congress to fail to

recognize any executive pardon granted by a State which has a

constitutional provision for executive pardons to be issued by

other than the Governor of the State."          Id.    The BIA affirmed its

acceptance of pardons issued by the Georgia State Board of Pardons

and Paroles in Matter of Tajer, explaining that "[t]he pardon . . .


                                  -27-
under consideration is the only unconditional executive pardon

that can be obtained in the state of Georgia" and reiterating that

the purpose of the Pardon Waiver Clause was "to eliminate the

effectiveness of a legislative pardon" for the purposes of the

statute.     15 I. & N. Dec. at 126 (emphasis added).                  While the

government    would     have    us    read      the   phrase   referring       to     a

"constitutional       provision      for    executive     pardons"    as   a        BIA

requirement    that    the     state's     supreme    pardoning   authority         be

conferred by constitution, such a requirement would conflict with

Matter of T--, 6 I. & N. Dec. at 215, as well as Matter of C-R-,

8 I. & N. Dec. at 63 (accepting a pardon issued pursuant to a

Nebraska statute granting the mayor pardon authority for local

violations), and Matter of K--, 9 I. & N. Dec. at 339 (accepting

a pardon from the United States High Commissioner for Germany,

notwithstanding that the pardoning power was derived from an

executive    order).      Therefore,       we    refuse   to   read   it   as       the

government proposes.10


10  The government also suggests that the statute is unambiguous
and applies only to presidential and gubernatorial pardons, all
the while still pressing that the relevant attribute disqualifying
Connecticut pardons is that the pardon authority is legislatively
conferred. The government does not seem to be suggesting that we
abrogate the BIA's policy of accepting "executive pardons." As
we limit our holding to correcting the BIA's unacknowledged and
seemingly arbitrary departure from its settled course of
adjudication, we avoid reaching the proper interpretation of the
Pardon Waiver Clause directly, noting that this circuit has not
addressed the appropriate degree of deference afforded to an

                                       -28-
              Instead, we agree with Thompson (and the BIA in Walton)

that Connecticut pardons and Georgia pardons are substantively

identical,     notwithstanding     that   Georgia's    pardoning     power    is

conferred by constitution.         Both Boards of Pardons and Paroles

enjoy complete discretion to issue full and unconditional pardons

through a deliberative process.           See Conn. Gen. Stat. § 54-124a

and Georgia Const. Art. IV, Sec. 2, para. 2; see also McLaughlin

v. Bronson, 537 A.2d 1004, 1007 (Conn. 1988) (describing the

Connecticut "board['s] unfettered discretion in making its pardon

and commutation decisions" (citing Bd. of Pardons v. Dumschat, 452

U.S.   458,    466    (1981))).    Like     in   Georgia,   the    Governor   of

Connecticut appoints the board members, who are confirmed by the

legislature.         See Conn. Gen. Stat. § 54-124a.              The State of

Connecticut maintains (and the BIA accepted in Walton) that the

Connecticut      Board   is   an   executive      agency,   and    that   under

Connecticut law, someone who has received a full and unconditional

pardon has not been convicted of any crime.            Thus, when the Board

exercised its discretion to grant Thompson a "full, complete,

absolute and unconditional pardon," his conviction and arrest were

erased, according to Connecticut law.                See Conn. Gen. Stat.




unpublished BIA decision, like the one before us, see Vásquez v.
Holder, 635 F.3d 563, 567 n.6 (1st Cir. 2011) (citing De León–
Ochoa v. Att'y Gen. of U.S., 622 F.3d 341, 349–51 (3d Cir. 2010)).


                                     -29-
§ 54-142a(e)(3).      According to the BIA's precedent, that would

qualify for relief under the Pardon Waiver Clause.

              In fact, contrary to the government's suggestion that

the BIA's decision here was not a break with its past published

precedent, the BIA as early as 1958 declared in a published opinion

that "[t]hat portion of section 241(b) of the Immigration and

Nationality Act limiting the grant of an effective pardon to the

President of the United States or the governor of a state has been

interpreted to include a pardon granted by a state which has

statutory provision for executive pardons to be issued by other

than the governor of the state."         Matter of C-R-, 8 I. & N.          Dec.

at 61-62.      In that case, the BIA found that "the unconditional

pardon granted the respondent under the legislation provision" at

issue -- a statute enabling mayors of certain cities to pardon

individuals convicted of municipal offenses -- "is an effective

pardon" for the purpose of the Pardon Waiver Clause.              Id. at 63.

It did so in part because, notwithstanding the fact that the mayor

was not a governor or the president and the fact that his authority

was derived from legislation, he was nevertheless "the supreme

pardoning authority in the case of a conviction under a city

ordinance of his municipality," as his pardoning authority in this

respect was not coextensive with that of any other official.                Id.

As   amicus    Connecticut   points    out,   the   same   is   true   of    the


                                      -30-
Connecticut Board of Pardons and Paroles here.                See Conn. Gen.

Stat. § 54-130a; McLaughlin, 537 A.2d at 1006-07 ("In Connecticut,

the pardoning power is vested in the legislature[,] which has

delegated its exercise to the board of pardons." (internal citation

omitted)).

             The BIA has effectively constrained its discretion as to

what suffices under the Pardon Waiver Clause.                 Even absent the

about-face in Walton, we are persuaded that the BIA departed from

its settled course of accepting full and unconditional pardons

granted by a state's supreme pardoning authority when the pardon

is executive, rather than legislative, in nature.                    The BIA's

policy has been shaped by its prior decisions accepting pardons

from   authorities      whose    powers    were   conferred   by   statute    and

rejecting     pardons     that     were     not   deliberative,     even     when

constitutionally guaranteed.              From these BIA decisions, it is

evident that "executive in nature" does not require the power to

pardon be presently inscribed in a state's constitution.                   As the

BIA premised its denial of Thompson's motion to reopen on the

insufficiency of a Connecticut pardon for purposes of the Pardon

Waiver Clause, we remand to the BIA to determine whether to reopen

Thompson's immigration proceedings sua sponte against the correct

legal background.11


11   The administrative record reflects that Thompson submitted the

                                      -31-
                               III.

          Convinced that we have jurisdiction to review colorable

legal and constitutional challenges to denials of motions to reopen

sua sponte, we conclude that the BIA departed from its settled

course of adjudication by deeming a pardon from the state of


minutes of his pardon waiver hearing with his motion to reopen and
the original copy of his pardon certificate a few days later. We
note that the BIA, nevertheless, found that "[w]ithout a certified
photocopy, [Thompson had] not met his heavy burden of showing that
his case should be reopened." On appeal, Thompson argues that the
BIA's decision on this issue constituted legal error: he provided
the BIA with an original copy; there was no requirement that he
provide the BIA with a certified copy instead; and in fact, the
authorities cited by the BIA purportedly in support of the
proposition that certified copies are required do not indicate any
such requirement. See 8 C.F.R. § 1003.2; INS v. Abudu, 485 U.S.
94 (1988); Matter of Coelho, 20 I. & N. Dec. 464 (B.I.A. 1992).
Rather, Thompson posits (and we agree), these cases cited by the
BIA deal with the heavy substantive burden that the petitioner
must meet for reopening. In its response, the government ignores
this nonfrivolous legal-error argument and offers nothing in
defense of, or that might elucidate, the BIA's statement on this
point.   Thus, it is apparent to us that the government is not
advancing this as a basis for denial, and we therefore need not
address it and deem it waived.        See W. Va. Coal Workers'
Pneumoconiosis Fund v. Bell, 781 F. App'x 214, 226 (4th Cir. 2019)
(Richardson, J., writing separately and announcing the judgment)
("[A]n appellee's wholesale failure to respond to a conspicuous,
nonfrivolous argument in the appellant's brief ordinarily
constitutes a forfeiture."); Alvarez v. Lynch, 828 F.3d 288, 295
(4th Cir. 2016); Cincinnati Ins. Co. v. E. Atl. Ins. Co., 260 F.3d
742, 747 (7th Cir. 2001). Judge Barron dissents solely as to this
issue. In his view, the BIA's ruling as to the requirement to
provide a certified photocopy must be vacated and remanded for
consideration of Thompson's unchallenged argument that the
requirement was impermissible because it deviated from settled
agency practice, but the BIA should be permitted on remand to
consider whether that requirement either accorded with that past
practice or was otherwise justified.


                               -32-
Connecticut insufficient under the Pardon Waiver Clause, and we

remand for further proceedings consistent with this opinion.

           As a final matter, we address the Petitioner's Emergency

Motion for Bail.      Thompson articulates the risk that he faces

while currently detained given the present pandemic and emphasizes

the considerable length of time he has spent at the Etowah County

Detention Center in Gadsden, Alabama -- the last stretch occurring

during the pendency of this appeal.

           First, we find that the issue of bail pending appeal is

moot.   See Pet'r's Emergency Mot. for Bail 3 ("Thompson asks this

Court to exercise its inherent authority to admit petitioners to

bail pending resolution of an appeal to order his immediate release

from immigration custody." (citation omitted)).

           Therefore, we construe Thompson's emergency motion for

bail as a petition for a writ of habeas corpus and transfer it to

the Northern District of Alabama, the district where Thompson

remains confined.12   See 28 U.S.C. § 2241(b); Rumsfeld v. Padilla,

542 U.S. 426, 443 (2004) ("The plain language of the habeas statute

. . . confirms the general rule that for core habeas petitions



12 In January 2019, Thompson filed a petition for writ of habeas
corpus challenging his immigration detention in the Northern
District of Alabama, which the district court dismissed without
prejudice on September 30, 2019.    See Thompson v. Horton, No.
4:19-cv-00120, 2019 WL 4750072 (N.D. Ala. Sept. 20, 2019).


                                -33-
challenging present physical confinement, jurisdiction lies in

only one district: the district of confinement."); López-Marroquín

v. Barr, 955 F.3d 759 (9th Cir. 2020).    We note that the pressing

Covid-19-related   concerns   that   Thompson's   motion   raises   are

distinct from those previously presented to the district court in

his prior habeas petition so that our transfer does not duplicate

litigation currently pending before the Eleventh Circuit.

          Vacated and Remanded.




                                -34-
