Henrikas Malukas v. William Barr

Citation: Not availableDocket: 19-1633

Court: Court of Appeals for the Seventh Circuit; October 15, 2019; Federal Appellate Court

Original Court Document: View Document

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Henrikas Malukas, a Lithuanian citizen, entered the U.S. in 1992 on a tourist visa, which he overstayed. In 1995, he was convicted of multiple weapons-related felonies, resulting in a 52-month prison sentence, during which immigration removal proceedings were initiated against him. Malukas applied for discretionary relief based on his marriage to a U.S. citizen, but both the immigration judge and the Board of Immigration Appeals (BIA) determined that his criminal history outweighed his family ties. The BIA issued a final order in July 2003, which Malukas did not challenge, although he later filed a timely motion for reconsideration, arguing that his criminal conduct should not have been a significant barrier. This motion was denied in September 2003, again without judicial review from Malukas.

In 2018, Malukas submitted a second motion to reconsider and a motion to reopen, claiming that the removal order was invalid due to a defect in the original 'Notice to Appear,' which lacked a hearing date and time, referencing the case Pereira v. Sessions. Despite a later document providing this information, Malukas argued that the defect stripped the immigration judge of jurisdiction. He also claimed that he had rehabilitated over time and that Lithuania's refusal to accept his return warranted discretionary relief. The BIA denied both motions as untimely and barred by prior limits. The BIA clarified that a defect in a Notice to Appear does not affect jurisdiction, a position supported by the Seventh Circuit in Ortiz-Santiago v. Barr. Malukas attempted to circumvent the established time and number restrictions by requesting sua sponte reopening; however, the court ruled this request was contradictory, as reopening in response to a motion does not qualify as sua sponte and remains subject to the same limits. The BIA's time and number restrictions are comparable to federal collateral review laws, which also permit only one motion unless specific conditions are met.

Prisoners have employed various strategies to circumvent restrictions on filing successive petitions, including framing them as motions for relief under Fed. R. Civ. P. 60(b). However, the Supreme Court in Gonzalez v. Crosby determined that if such motions present substantive arguments, they are classified as prohibited successive petitions. Another tactic involves requesting the court of appeals to recall its mandate, which the Court equated to a petition for rehearing in Calderon v. Thompson, although it noted that if the court would have acted regardless of the request, that assertion should be accepted.

In the case of Malukas, his filing with the Board is considered a motion for reopening or reconsideration, which was denied based on time and numerical limitations. The Board found Malukas's claims of personal rehabilitation and the impact of Lithuania's refusal to accept his return substantive, thereby justifying its denial on the merits in accordance with Iglesias v. Mukasey. The Board explicitly stated it would not have reopened the case without a motion, emphasizing that reopening sua sponte is reserved for exceptional circumstances.

The legal precedents from Gonzalez and Calderon support the notion that merely adding "sua sponte" to an untimely or barred motion does not eliminate those limits or permit full judicial review of the Board's decisions. The Board's discretion in reopening cases sua sponte remains unreviewable under 8 U.S.C. § 1252(a)(2)(B) and is not altered by the Iglesias decision, which pertains only to timely motions. A recent court ruling allowed for some scrutiny of whether the Board misunderstood the basis of an alien's request, creating a conflict with other circuit rulings. The document concludes by questioning the necessity of the Board providing explanations for its denials, given its broad discretion, and references Chaney, which reaffirmed the non-reviewability of such discretionary decisions.

The Supreme Court is set to address significant issues in two cases: Guerrero-Lasprilla v. Barr, which examines whether a court of appeals can review the Board's refusal to apply equitable tolling to an untimely motion for reconsideration, and Department of Homeland Security v. University of California, which considers whether courts can overturn a discretionary prosecutorial decision based on alleged legal errors. The current case does not explore the extent of judicial review under Fuller, as the Board provided a valid rationale for its decision not to reopen the case sua sponte, indicating no legal error. Consequently, judicial review is unavailable. The determination of whether Malukas can be removed to Lithuania lies with diplomats, and the decision on pursuing his removal is at the discretion of the United States, considering developments since 2003. The petition for review regarding the Board's denial to reconsider the 2003 decision is denied, and the dismissal for lack of jurisdiction applies to the Board's refusal to reopen the proceedings sua sponte.