Tigran Ekimian Rouzan Nagapetian Avetis Hekimian v. Immigration and Naturalization Service

dissenting:

I respectfully dissent from the majority’s holding that we lack jurisdiction to review a BIA decision not to reopen deportation proceedings sua sponte. I would grant the petition for review and remand to the BIA. In my view, this is a case where the interest of justice demands that an administrative agency be held accountable for its decisions. The liberty interests of the Ekimian family, who have now been living in the United States for nearly nine years, require no less.

In its brief to this panel, the Immigration and Naturalization Service (“INS”) writes,

In this country and under our laws, we typically do not leave individuals’ liberty interests to the “grace” of bureaucrats, even well-intentioned bureaucrats. It is only the rarest of cases where discretion is left entirely unfettered. See, e.g., Abbott Lab. v. Gardner, 387 U.S. 136, 139-41 , 87 S.Ct. 1507 , 18 L.Ed.2d 681 (1967) (discussing the general presumption that all agency decisions are reviewable absent clear and convincing evidence of contrary legislative intent). Appellate review is the hallmark of our judicial system. See Marbury v. Madison, 5 U.S. (1 Cranch) 137, 166, 2 L.Ed. 60 (1803) (“[Wjhere a…

Tigran Ekimian, his wife, Rouzan Na-gapetian, and their minor son, Avetis Hek-imian, (hereinafter the “Ekimians”) seek review of an order by the Board of Immigration Appeals (“BIA”) dismissing as untimely their motion to reopen deportation proceedings. The Ekimians based their motion to reopen on an application for an adjustment of status as a skilled worker or professional pursuant to Immigration and Naturalization Act (“INA”) §§ 203(b)(3)(A)®, (ii), 8 U.S.C. §§ 1153 (b)(3)(A)®, (ii), relying on Tigran Ekimian’s recently approved 1-140 petition (Immigrant Petition for Alien Worker). We hold that the Ekimians’ motion to reopen was untimely under 8 C.F.R. § 3.2 (c)(2), and that we lack jurisdiction to review a BIA decision not to reopen the proceeding sua sponte under 8 C.F.R. § 3.2 (a).

I. Facts and Procedural Background

Ekimian, an Armenian citizen, entered the United States as a nonimmigrant visitor on October 1, 1993, and was authorized to remain in the United States until March 28, 1994. His wife and son, also Armenian citizens, entered the United States as non-immigrant visitors on November 12, 1993, and were also authorized to stay in the United States until March…

303 F.3d 1153 Tigran EKIMIAN; Rouzan Nagapetian; Avetis Hekimian, Petitioners, v. IMMIGRATION AND NATURALIZATION SERVICE, Respondent. No. 99-70322. United States Court of Appeals, Ninth Circuit. Argued and Submitted November 14, 2000. Submission Withdrawn April 16, 2001. Resubmitted September 5, 2002. Filed September 12, 2002. Victor D. Nieblas, Los Angeles, CA, for the petitioners. David V. Bernal, Brenda E. Ellison, and Donald A. Couvillon, Washington, DC, for the respondent. On Petition for Review of an Order of the Board of Immigration Appeals. INS Nos. Avu-ior-cki/404/405. Before: BRIGHT, * T.G. NELSON, and W. FLETCHER, Circuit Judges. WILLIAM A. FLETCHER, Circuit Judge. 1 Tigran Ekimian, his wife, Rouzan Nagapetian, and their minor son, Avetis Hekimian, (hereinafter the "Ekimians") seek review of an order by the Board of Immigration Appeals ("BIA") dismissing as untimely their motion to reopen deportation proceedings. The Ekimians based their motion to reopen on an application for an adjustment of status as a skilled worker or professional pursuant to Immigration and Naturalization Act ("INA") §§ 203(b)(3)(A)(i), (ii), 8 U.S.C. §§ 1153 (b)(3)(A)(i), (ii),…