Reyes Mata v. Lynch

the ąfth circuit No. 14–185. Argued April 29, 2015—Decided June 15, 2015 After petitioner Noel Reyes Mata, an unlawful resident alien, was convicted of assault in a Texas court, an Immigration Judge ordered him removed to Mexico. Mata's attorney filed a notice of appeal with the Board of Immigration Appeals (BIA or Board), but never filed a brief, and the appeal was dismissed. Acting through different counsel, Mata filed a motion to reopen his removal proceedings, as authorized by statute. See 8 U. S. C. § 1229a(c)(7)(A). Acknowledging that he had missed the 90-day deadline for such motions, see § 1229a(c)(7)(C)(i), Mata argued that his previous counsel's ineffective assistance was an exceptional circumstance entitling him to equitable tolling of the time limit. But the BIA disagreed and dismissed the motion as untimely. The BIA also declined to reopen Mata's removal proceedings sua sponte based on its separate regulatory authority. See 8 CFR § 1003.2(a). On appeal, the Fifth Circuit construed Mata's equitable tolling claim as an invitation for the Board to exercise its regulatory authority to reopen the proceedings sua sponte , and—because circuit precedent forbids the court to review BIA decisions not to exercise that authority—dismissed Mata's appeal for lack of jurisdiction. Held: The Fifth Circuit erred in declining to take jurisdiction over Mata's appeal. A court of appeals has jurisdiction to review the BIA's rejection of an alien's motion to reopen. Kucana v. Holder, 558 U. S. 233, 253. Nothing about that jurisdiction changes where the Board rejects a motion as untimely, or when it rejects a motion requesting equitable tolling of the time limit. That jurisdiction likewise remains unchanged if the BIA's denial also contains a separate decision not to exercise its sua sponte authority. So even assuming the Fifth Circuit is correct that courts of appeals lack jurisdiction to review BIA decisions not to reopen cases sua sponte , that lack of jurisdiction does not affect jurisdiction over the decision on the alien's motion to reopen. It thus follows that the Fifth Circuit had jurisdiction over this case. The Fifth Circuit's contrary decision rested on its construing Mata's motion as an invitation for the Board to exercise its sua sponte discretion. Court-appointed amicus asserts that the Fifth Circuit's recharac-terization was based on the premise that equitable tolling in Mata's situation is categorically forbidden. In amicus's view, the court's construal was therefore an example of the ordinary practice of recharacterizing a

doomed request as one for relief that may be available. But even if equitable tolling is prohibited, the Fifth Circuit's action was not justi-fed. If Mata is not entitled to relief on the merits, then the correct disposition is to take jurisdiction and affirm the BIA's denial of his motion. For a court retains jurisdiction even if a litigant's request for relief lacks merit, see Steel Co. v. Citizens for Better Environment, 523 U. S. 83, 89, and a federal court has a “virtually unflagging obligation,” Colorado River Water Conservation Dist. v. United States, 424 U. S. 800, 817, to assert jurisdiction where it has that authority. Nor can the established practice of recharacterizing pleadings so as to offer the possibility of relief justify an approach that, as here, renders relief impossible and sidesteps the judicial obligation to assert jurisdiction. Pp. 147–151. 558 Fed. Appx. 366, reversed and remanded. Kagan, J., delivered the opinion of the Court, in which Roberts, C. J., and Scalia, Kennedy , Ginsburg , Breyer , Alito , and Sotomayor , JJ., joined. Thomas, J., filed a dissenting opinion, post, p. 151.

Mark C. Fleming argued the cause for petitioner. With him on the briefs were Raed Gonzalez, Naimeh Salem, Bruce Godzina, Sydenham B. Alexander III, Jason D. Hirsch, Brian K. Bates, and Alexander I. Afanassiev .

Anthony A. Yang argued the cause for respondent. With him on the briefs were Solicitor General Verrilli, Acting Assistant Attorney General Branda, Deputy Solicitor General Kneedler , Donald E. Keener , and Patrick J. Glen.

William R. Peterson, by invitation of the Court, 574 U. S. 1118, argued the cause and filed a brief as amicus curiae in support of the judgment below. With him on the brief was Charles R. Flores.*

Justice Kagan delivered the opinion of the Court.

An alien ordered to leave the country has a statutory right to file a motion to reopen his removal proceedings. See 8 U. S. C. § 1229a(c)(7)(A). If immigration officials deny that

The Immigration and Nationality Act (INA), 66 Stat. 163, as amended, 8 U. S. C. § 1101 et seq., and its implementing regulations set out the process for removing aliens from the country. An immigration judge (IJ) conducts the initial proceedings; if he orders removal, the alien has the opportunity to appeal that decision to the Board of Immigration Appeals (BIA or Board). §§ 1229a(a)(1), (c)(5). “[E]very alien ordered removed” also “has a right to file one motion” with the IJ or Board to “reopen his or her removal proceedings.” Dada v. Mukasey , 554 U. S. 1, 4–5 (2008); see § 1229a(c)(7)(A). Subject to exceptions not relevant here, that motion to reopen “shall be filed within 90 days” of the final removal order. § 1229a(c)(7)(C)(i). Finally, the BIA's regulations provide that, separate and apart from acting on the alien's motion, the BIA may reopen removal proceedings “on its own motion”—or, in Latin, sua sponte—at any time. 8 CFR § 1003.2(a) (2015).

Petitioner Noel Reyes Mata is a Mexican citizen who entered the United States unlawfully almost 15 years ago. In 2010, he was convicted of assault under the Texas Penal Code. The federal Department of Homeland Security (DHS) immediately initiated removal proceedings against him, and in August 2011 an IJ ordered him removed. See App. 6–13. Mata's lawyer then filed a notice of appeal with the BIA, indicating that he would soon submit a written brief stating grounds for reversing the IJ's decision. But the attorney never filed the brief, and the BIA dismissed the appeal in September 2012. See id., at 4–5.

Mata petitioned the Court of Appeals for the Fifth Circuit to review the BIA's denial of his motion to reopen, arguing that he was entitled to equitable tolling. The Fifth Circuit, however, declined to “address the merits of Mata's equitable-tolling . . . claim[ ].” Reyes Mata v. Holder, 558 Fed. Appx. 366, 367 (2014) (per curiam ). It stated instead that “[i]n this circuit, an alien's request [to the BIA] for equitable tolling on the basis of ineffective assistance of counsel is construed as an invitation for the BIA to exercise its discretion to reopen the removal proceeding sua sponte .” Ibid. And circuit precedent held that courts have no jurisdiction to review the BIA's refusal to exercise its sua sponte power to

Every other Circuit that reviews removal orders has af-firmed its jurisdiction to decide an appeal, like Mata's, that seeks equitable tolling of the statutory time limit to file a motion to reopen a removal proceeding. 1 We granted certiorari to resolve this conflict. 574 U. S. 1118 (2015). And because the Federal Government agrees with Mata that the Fifth Circuit had jurisdiction over his appeal, we appointed an amicus curiae to defend the judgment below. 2 We now reverse.

As we held in Kucana v. Holder, circuit courts have jurisdiction when an alien appeals from the Board's denial of a motion to reopen a removal proceeding. See 558 U. S., at 242, 253. The INA, in combination with a statute cross-referenced there, gives the courts of appeals jurisdiction to review “final order[s] of removal.” 8 U. S. C. § 1252(a)(1); 28 U. S. C. § 2342. That jurisdiction, as the INA expressly contemplates, encompasses review of decisions refusing to reopen or reconsider such orders. See 8 U. S. C. § 1252(b)(6) (“[A]ny review sought of a motion to reopen or reconsider [a

Nothing changes when the Board denies a motion to reopen because it is untimely—nor when, in doing so, the Board rejects a request for equitable tolling. Under the INA, as under our century-old practice, the reason for the BIA's denial makes no difference to the jurisdictional issue. Whether the BIA rejects the alien's motion to reopen because it comes too late or because it falls short in some other respect, the courts have jurisdiction to review that decision.

Similarly, that jurisdiction remains unchanged if the Board, in addition to denying the alien's statutorily authorized motion, states that it will not exercise its separate sua sponte authority to reopen the case. See supra, at 145. In Kucana, we declined to decide whether courts have jurisdiction to review the BIA's use of that discretionary power. See 558 U. S., at 251, n. 18. Courts of Appeals, including the Fifth Circuit, have held that they generally lack such authority. See, e. g., Enriquez-Alvarado v. Ashcroft, 371 F. 3d 246, 249–250 (CA5 2004); Tamenut v. Mukasey , 521 F. 3d 1000, 1003–1004 (CA8 2008) (en banc) (per curiam ) (citing other decisions). Assuming arguendo that is right, it means only that judicial review ends after the court has evaluated the Board's ruling on the alien's motion. That courts lack jurisdiction over one matter (the sua sponte decision) does not affect their jurisdiction over another (the decision on the alien's request).

It follows, as the night the day, that the Court of Appeals had jurisdiction over this case. Recall: As authorized by the INA, Mata filed a motion with the Board to reopen his removal proceeding. The Board declined to grant Mata his proposed relief, thus conferring jurisdiction on an appellate

Nonetheless, the Fifth Circuit dismissed Mata's appeal for lack of jurisdiction. That decision, as described earlier, hinged on “constru[ing]” Mata's motion as something it was not: “an invitation for the BIA to exercise” its sua sponte authority. 558 Fed. Appx., at 367; supra, at 146. Amicus's defense of that approach centrally relies on a merits-based premise: that the INA forbids equitable tolling of the 90-day fling period in any case, no matter how exceptional the circumstances. See Brief for Amicus Curiae by Invitation of the Court 14–35. Given that is so, amicus continues, the court acted permissibly in “recharacteriz[ing]” Mata's pleadings. Id., at 36. After all, courts often treat a request for “categorically unavailable” relief as instead “seeking relief [that] may be available.” Id., at 35, 38. And here ( amicus concludes) that meant construing Mata's request for equitable tolling as a request for sua sponte reopening—even though that caused the Fifth Circuit to lose its jurisdiction.

But that conclusion is wrong even on the assumption—and it is only an assumption—that its core premise about equitable tolling is true. 3 If the INA precludes Mata from getting

Contrary to amicus's view, the practice of recharacterizing pleadings so as to offer the possibility of relief cannot justify the Court of Appeals' alternative approach. True enough (and a good thing too) that courts sometimes construe one kind of filing as another: If a litigant misbrands a motion, but could get relief under a different label, a court will often make the requisite change. See, e. g., 12 J. Moore, Moore's Federal Practice § 59.11[4] (3d ed. 2015) (explaining how courts treat untimely Rule 59 motions as Rule 60 motions

gorically precludes equitable tolling: It is hard to come up with any other reason why the court construes every argument for tolling as one for sua sponte relief. See Brief for Amicus Curiae by Invitation of the Court 2, 10, 14, n. 2. But the Fifth Circuit has stated that position in only a single sentence in a single unpublished opinion, which (according to the Circuit) has no precedential force. See Lin v. Mukasey , 286 Fed. Appx. 148, 150 (2008) (per curiam ); Rule 47.5.4 (2015). And another unpublished decision cuts in the opposite direction, “hold[ing] that the doctrine of equitable tolling applies” when exceptional circumstances excuse an alien's failure to meet the 90-day reopening deadline. Torabi v. Gonza-les, 165 Fed. Appx. 326, 331 (CA5 2006) (per curiam ). So, in the end, it is hard to say.

And if, as amicus argues, that construal rests on an underlying merits decision—that the INA precludes any equitable tolling—then the Court of Appeals has effectively insulated a circuit split from our review. Putting the Fifth Circuit to the side, all appellate courts to have addressed the matter have held that the Board may sometimes equitably toll the time limit for an alien's motion to reopen. See n. 1, supra. Assuming the Fifth Circuit thinks otherwise, that creates the kind of split of authority we typically think we need to resolve. See this Court's Rule 10(a). But the Fifth Circuit's practice of recharacterizing appeals like Mata's as challenges to the Board's sua sponte decisions and then declining to exercise jurisdiction over them prevents that split from coming to light. Of course, the Court of Appeals may reach whatever conclusion it thinks best as to the availability of equitable tolling; we express no opinion on that matter. See n. 3, supra. What the Fifth Circuit may not do is to wrap such a merits decision in jurisdictional garb so that we cannot address a possible division between that court and every other.

For the foregoing reasons, we reverse the judgment of the Court of Appeals and remand the case for further proceedings consistent with this opinion.

It is so ordered.

Justice Thomas, dissenting.

The Court's opinion in this case elides an important distinction between construing a court fling and recharacteriz-ing it. See Castro v. United States, 540 U. S. 375, 386 (2003) (Scalia, J., concurring in part and concurring in judgment)

In my view, then, it makes all the difference whether the Court of Appeals here properly construed an ambiguous motion or recharacterized an unambiguous motion contrary to Mata's stated choice of procedural vehicle. Although the majority's opinion does not address this point, Mata's motion to reopen does not expressly state whether he was invoking statutory relief under 8 U. S. C. § 1229a(c)(7)(A) or instead requesting sua sponte reopening under the Board of Immigration Appeals' (BIA) asserted inherent authority. Had the Court of Appeals engaged in the discretionary action of construing that ambiguous fling, it might not have abused its discretion by concluding that Mata really meant to ask for sua sponte reopening rather than equitable tolling of the statutory time bar.

The Court of Appeals, however, did not purport to construe an ambiguous motion. Instead, it applied what ap-

The reason it erred, though, has nothing to do with its fidelity to our precedents discussing “the judicial obligation to exercise jurisdiction,” ante, at 151. That obligation does not allow evasion of constitutional and statutory jurisdictional prerequisites. It is true that “when a federal court has jurisdiction, it also has a `virtually unflagging obligation to . . . exercise' that authority.” Ante, at 150 (quoting Colorado River Water Conservation Dist. v. United States, 424 U. S. 800, 817 (1976)). But that “unflagging obligation” arises only if a court actually has jurisdiction. Federal courts have no obligation to seek out jurisdiction, nor should they misconstrue flings to satisfy jurisdictional requirements. Rather, federal courts should “presume that [they] lack jurisdiction unless the contrary appears affirmatively from the record.” See DaimlerChrysler Corp. v. Cuno , 547 U. S. 332, 342, n. 3 (2006). And they should apply the ordinary rule that the party asserting federal jurisdiction bears the burden of proving that jurisdictional prerequisites are met. Ibid. The practice of construing flings does not alter the usual rules of establishing jurisdiction in federal court.

I would vacate and remand for the Court of Appeals to consider the BIA's judgment without the burden of what ap-