this petition for rehearing - Immigrant Law Center of Minnesota

Case: 07-3715 Page: 1 Date Filed: 07/26/2010 Entry ID: 3687159 

No. 07-3715 

UNITED STATES COURT OF APPEALS 

FOR THE EIGHTH CIRCUIT 

___________________ 

Ana Rosa Ochoa, 

v. 

Petitioner, 

Eric H. Holder, Jr., Attorney General 

of the United States, 

___________________ 

Respondent. 

PETITIONER ANA ROSA OCHOA’S PETITION 

FOR PANEL OR EN BANC REHEARING 

____________________ 

GRAY PLANT MOOTY 

MOOTY & BENNETT, P.A. 

By: s/Craig A. Brandt 

Craig A. Brandt (#214036) 

Dean C. Eyler (#267491) 

500 IDS Center 

80 South Eighth Street 

Minneapolis, MN 55402 

(612) 632-3000 

Benjamin R. Casper 

Immigrant Law Center of Minnesota 

1059 S. Robert Street, Suite 100 

St. Paul, MN 55118 

(651) 271-6661 

Sheila Stuhlman 

Immigrant Law Center of Minnesota 

450 N. Syndicate Street, Suite 175 

St. Paul, MN 55104 

(651) 641-1011 

Bart A. Chavez 

Chavez & Associates, P.C., LLO 

2809 South 125th Avenue, Suite 284 

Omaha, NE 68144 

(402) 330-2434 

Attorneys for Petitioner


Andrew Oliveira 

Trial Attorney 

U.S. Department of Justice 

Office of Immigration Litigation 

P.O. Box 878, Ben Franklin Station 

Washington, D.C. 20044 

(202) 305-8570 

Attorneys for Respondent


PETITION 

Petitioner Ana Rosa Ochoa respectfully petitions the Court, under Rules 35 

and 40 of the Federal Rules of Appellate Procedure, to grant rehearing or rehearing 

en banc of its decision issued on May 5, 2010. 

Issue I: The panel decision that this Court lacks jurisdiction to review 

Ochoa’s claim for abuse of discretion under Tamenut v. Mukasey, 521 F.3d 1000, 

1005 (8th Cir. 2008) (en banc), conflicts with a decision of the U.S. Supreme 

Court, SEC v. Chenery, 318 U.S. 80 (1943), because the panel failed to measure its 

jurisdiction according to the terms of the agency decision. The panel decision is 

also undermined by Kucana v. Holder, 130 S. Ct. 827 (2010), and should be 

reheard to maintain uniformity with this Court’s prior decisions that have properly 

acknowledged the BIA’s broad discretion to construe an alien’s filing in the 

manner it sees fit. See Vargas v. Holder, 567 F.3d 387, 389 n.4 (8th Cir. 2009) 

(construing a party’s motion to remand as a motion to reopen and noting this 

Court’s long-standing practice of reviewing denials of motions to reopen); 

Makatengkeng v. Gonzales, 495 F.3d 876, 886 (8th Cir. 2007) (approving of BIA’s 

decision to treat petitioner’s motion to “admit evidence on appeal” as a reviewable 

motion to reopen). 

Issue II: Rehearing is required because the BIA order was an abuse of 

discretion for the reasons stated in Judge Colloton’s dissent, as the BIA denied 

1


Ms. Ochoa’s motion to reopen based on ineffective assistance of counsel without a 

“rational and reasoned explanation for its decision.” 

Issue III: This case presents a question of exceptional importance: whether 

the holding of Tamenut – that BIA decisions not to reopen a case sua sponte are 

“committed to agency discretion by law” – remains valid in light of Kucana. 

COURSE OF PROCEEDINGS AND DISPOSITION 

Ms. Ochoa is a citizen of Mexico who entered the United States in 1991. 

Ochoa v. Holder, 604 F.3d 546, 547 (8th Cir. 2010). In 2004, after the government 

initiated removal proceedings against her, Ochoa conceded removability but filed 

an application for cancellation of removal. Id. On January 9, 2006, an 

Immigration Judge (IJ) orally denied this application, a ruling which was affirmed 

by the Board of Immigration Appeals (BIA) on May 25, 2007. 

Both the IJ and the BIA determined that Ochoa had good 

moral character and continuous physical presence in the 

United States, two elements required for cancellation of 

removal, but based their denials upon the conclusion that 

Ochoa failed to show that her removal would result in 

exceptional and extremely unusual hardship to her 

qualifying relatives, namely her two United States citizen 

children. Id. 

At the hearing before the IJ, Ochoa testified that her son, Guillermo, age 7 at 

the time, suffered from lead poisoning that had resulted in his learning difficulties. 

Id. Ochoa’s counsel then disclosed that Guillermo’s poisoning was “new to him,” 

and requested additional time to secure and submit related evidence. Id. When the 

2


IJ then asked Ochoa why she had not disclosed Guillermo’s condition to her 

attorney, she explained that she did not think doing so was necessary. 

The IJ declined the request by Ochoa’s counsel for additional time, and held 

that Ochoa had not shown that her removal from the U.S. would cause 

“exceptional and extremely unusual hardship.” Id. The “IJ relied in part upon 

Ochoa’s failure to submit any corroborating evidence regarding her assertions 

about Guillermo’s needs and disabilities due to his lead poisoning.” Id. In 

affirming, the BIA held that the hardship claimed by Ochoa fell short of the 

“exceptional and extremely unusual” standard, and rejected the argument that the 

IJ should have continued the case to allow Ochoa’s counsel more time. Id. 

After obtaining new counsel, Ochoa filed a timely motion with the BIA to 

reopen her case based on the ineffectiveness of her prior counsel. The motion was 

brought pursuant to 8 C.F.R. § 1003.2(a), a regulation that authorizes the BIA to 

reopen or reconsider any case “on its own motion” or in response to a written 

motion by a party. 1 

In support of her motion, Ochoa submitted a bar complaint filed against her 

prior counsel and an affidavit describing his deficient handling of her case. Ochoa 

asserted that her former attorney failed to elicit key information related to her son’s 

1 

8 C.F.R. § 1003.2(a) and a related provision, Section 1003.2(c), are set forth 

in full in an addendum to this Petition. The panel decision is also included in the 

Addendum. 

3


disability. Administrative Record 46-50. Ochoa also submitted evidence about: 

the effects of lead poisoning; Guillermo’s diagnosis and treatment; his resulting 

learning disabilities; and the disadvantages faced by special education students in 

Mexico. Id. at 547-48. 

The BIA denied Ochoa’s motion to reopen. While noting that it was 

“troubled by evidence indicating that [Guillermo] suffered from educational 

problems stemming from … lead poisoning at the age of two,” the BIA held Ochoa 

had failed to demonstrate that evidence related to the hardship issue could not have 

been presented at her earlier hearing. Id. at 548. 

Ochoa then filed a timely petition with this Court seeking review of the 

BIA’s order denying her motion to reopen, but this Court dismissed it. A majority 

of the panel held that, under Tamenut, 521 F.3d 1000, this Court was precluded 

from reviewing the BIA’s order because Ochoa’s motion to reopen actually 

constituted a request that the BIA reopen the case on its own motion, which was a 

matter committed to agency discretion by law and thus unreviewable. 604 F.3d at 

549-50 (“we see no way around Tamenut’s proscription given Ochoa’s express 

reliance on § 1003.2(a) through her filings and argument.”). 

In a separate opinion, Judge Colloton disagreed with the majority’s holding. 

He noted that the parties were in agreement that this Court should review the BIA 

decision denying Ochoa’s motion. On the principal issue of whether the BIA order 

4


was reviewable, Judge Colloton, unlike the majority, focused on the ruling by the 

BIA instead of on Ochoa’s motion. Id. at 551 (“we review the BIA’s decision, not 

Ochoa’s motion”). He noted that the BIA had treated the motion as one by a party 

to reopen a case 2 and said, “There is not even a hint in the BIA’s decision … that it 

considered whether to exercise its ‘limited discretionary powers’ to reopen cases 

on its own motion.” Id. at 551. 3 

Accordingly, Judge Colloton concluded that this 

Court “should review the BIA’s denial [of Ochoa’s motion].” Id. 

Next, after declaring that the BIA ruling should be reversed if it “fail[ed] to 

give a rational and reasoned explanation for its decision,” Judge Colloton 

concluded: “the BIA’s cursory decision on Ochoa’s motion cannot withstand even 

this deferential review.” Id. The BIA had dealt with Ms. Ochoa’s argument about 

ineffective assistance of counsel “in two sentences,” but Judge Colloton found that 

those sentences were “not responsive to Ochoa’s argument that [her] counsel had a 

professional obligation to inquire about matters that would assist in making a case 

for cancellation of removal, and that counsel should have elicited the information 

2 

For example, in deciding the motion, the BIA applied the legal standard 

applicable to party-filed motions to reopen. Id. at 551. 

3 

Judge Colloton also concluded that the reference in Ochoa’s motion to 8 

C.F.R. § 1003.2(a) did not “by itself imply a request for the BIA to exercise its 

authority to reopen sua sponte,” and further that the text of Ochoa’s motion was 

not only “grammatically incoherent” but “did not state that [Ochoa] relied 

exclusively on” the “purely discretionary form of relief” afforded by sua sponte 

motions to reopen. Id. 

5


about lead poisoning from Ochoa.” Id. at 552 (“The BIA may or may not believe 

that counsel had such an obligation, but we do not know, because the BIA never 

addressed the point.”) 

Judge Colloton noted also that the BIA’s order did not disclose “whether it 

believed that differences between special education services available in Mexico 

and in the United States would amount to ‘exceptional and extremely unusual 

hardship’ for [Guillermo] if his mother were removed to Mexico.” Id. “Thus,” 

Judge Colloton said, “we have no decision from the BIA on whether the alleged 

ineffective assistance of counsel caused actual prejudice in the removal 

proceedings.” Accordingly, Judge Colloton said he would “remand the case for 

further proceedings with respect to Ochoa’s claim of ineffective assistance of 

counsel.” Id. 

ARGUMENT 

I. Rehearing is Warranted Because this Court’s Jurisdiction Must Be 

Measured Against the Substance of the BIA’s Decision, Not a Party’s 

Characterization of a Motion. As is, the Court’s Decision Violates 

Chenery and is Inconsistent With Treatment of BIA Decisions in Past 

Cases Decided by this Court. 

The Supreme Court recently reaffirmed that motions to reopen are an 

“important safeguard” in immigration proceedings and the presumption favoring 

judicial review of administrative action. Kucana, 130 S. Ct. 827. The panel 

decision in this case is flawed because its restricted view of Petitioner’s motion to 

6


reopen is inconsistent with those principles reaffirmed in Kucana, and its 

jurisdictional analysis focused on a misreading of Ochoa’s motion rather than on 

what the BIA actually decided. 

“The grounds upon which an administrative order must be judged are those 

upon which the record discloses that its action was based.” SEC v. Chenery, 318 

U.S. 80, 87 (1943). The panel decision in Ochoa v. Holder improperly failed to 

apply this principle of administrative law, which caused the Court to err by 

dismissing Ochoa’s petition without considering its merits. 

The majority opinion makes clear that its holding is based on the “stated 

basis for Ochoa’s motion” and not on “the board’s treatment of the motion.” 604 

F.3d at 549. But, as Judge Colloton noted, the Court’s task in this case was to 

“review the BIA’s decision, not Ochoa’s motion.” Id. at 551. Thus, Judge 

Colloton’s approach, i.e., determining reviewability by focusing on the grounds 

applied by the agency rather than on the particulars of the motion presented to the 

agency, is the one mandated by Chenery. 

Moreover, as Judge Colloton correctly concluded, the record leaves no doubt 

that in deciding Ochoa’s motion, the BIA treated it as if it were a motion by a party 

to reopen, which is reviewable under Tamenut. See 521 F.3d at 1003. The BIA 

said that the motion was “timely,” a conclusion “relevant only to a motion by a 

party, as there is no time limit on the BIA’s authority to reopen on its own 

7


motion.” 604 F.3d at 551 (Colloton, J., dissenting). In addition, the BIA analyzed 

the motion according to the standards established in Matter of Coelho, 20 I&N 

Dec. 464 (BIA 1992), which involved a motion to reopen by a party. Thus, 

because the BIA decided Ochoa’s motion on grounds applicable to a timely, partyinitiated 

motion to reopen, which is reviewable, the majority erred in holding the 

matter unreviewable. 

The majority incorrectly analyzed the sole issue that it considered decisive, 

i.e., whether Ochoa’s motion was one by a party to reopen or instead a motion 

seeking only the sua sponte exercise of discretion by the BIA. Ms. Ochoa’s 

reference to 8 C.F.R. § 1003.2(a) in her motion did “not by itself imply a request 

for the BIA to exercise its authority to reopen sua sponte,” because the subsection 

in question sets forth “[g]eneral” provisions about the filing of motions to reopen, 

including motions as of right by a party. 604 F.3d at 551 (Colloton, J., dissenting) 

Moreover, Ochoa’s motion, while inartfully phrased, nowhere stated that Ochoa 

relied exclusively on a request that the BIA exercise its discretion to reopen the 

matter. Id. (“an alien may follow a belt-and-suspenders approach, asking the BIA 

to reopen on the alien’s timely motion and on the BIA’s own motion”). 

Finally, prior decisions properly recognize that appellate courts have 

jurisdiction to review agency decisions on motions that the agency construes as 

motions to reopen. See, e.g., Vargas, 567 F.3d at 389 n.4 (reviewing BIA’s denial 

8


of “motion to remand,” which court construed as motion to reopen, and noting this 

Court’s “‘long-standing practice of reviewing the denial of motions to reopen’”) 

(quoting Miah v. Mukasey, 519 F.3d 784, 789 n.1 (8th Cir. 2008)); Makatengkeng , 

495 F.3d at 886 (8th Cir. 2007) (approving of BIA’s decision to treat motion to 

“admit evidence on appeal” as a reviewable motion to reopen); see also Habchy v. 

Gonzales, 471 F.3d 858, 864 (8th Cir. 2006) (recognizing that immigration judge 

was free to interpret a party’s motion to reconsider as a supplement to an earlier 

deficient motion to reopen). 

II. 

Rehearing is Necessary Because the BIA Ignored Important Elements of 

Petitioner’s Claim of Ineffective Assistance of Counsel. 

The essence of Ochoa’s motion to reopen was that if her prior counsel had 

not failed to obtain and submit evidence about the hardship that her removal from 

the U.S. would cause her young son Guillermo, Ochoa could have made the 

required showing of “exceptional and extremely unusual hardship” in support of 

her application for cancellation of removal. The evidence that should have been 

but was not submitted by prior counsel included evidence of Guillermo’s leadrelated 

learning disability and that Mexico “does not give every child with 

educational disabilities the services required, while such services are ‘mandatory’ 

in the U.S.” 604 F.3d at 552. 

Rehearing should be granted because the BIA order denying the motion to 

reopen failed, as required, “to give a rational and reasoned explanation for its 

9


decision.” 604 F.3d at 551 (Colloton, J., dissenting). As noted, the BIA addressed 

Ochoa’s argument in two sentences, but neither of those sentences provided any 

explanation for the BIA’s decision to reject Ms. Ochoa’s assertion that her prior 

counsel had breached his duty to search for and submit relevant evidence. Judge 

Colloton explained these deficiencies: 

i 

i 

The BIA’s order first relied upon Ochoa’s admission to the IJ that she 

had not thought that the lead poisoning issue was necessary to her 

case, but Judge Colloton noted that this concession was simply “not 

responsive to Ochoa’s argument that [her] counsel had a professional 

obligation to inquire about matters that would assist in making a case 

for cancellation of removal, and that counsel should have elicited the 

information about lead poisoning from Ochoa.” Id. at 552. 

The BIA’s second stated reason for its decision – that Guillermo’s 

lead levels were in the normal range at the time of his most-recent 

reading in 2002 – was similarly not pertinent to the contention Ochoa 

had presented to the BIA: that Guillermo “suffered lead poisoning in 

his early years,” and that this poisoning resulted in educational 

disabilities that are still present. Id. 

The reasons cited by the BIA were not pertinent to the main point of 

Ochoa’s motion to reopen, and thus the BIA abused its discretion. See Habchy v. 

Filip, 552 F.3d 911, 913 (8th Cir. 2009) (“The BIA abused its discretion in 

denying Habchy’s latest motion to reopen insofar as it failed to consider the 

entirety of Habchy’s claim for relief.”). Moreover, since the BIA never addressed 

“whether it believed that differences between special education services available 

in Mexico and in the United States would amount to ‘exceptional and extremely 

unusual hardship’ for Ochoa’s son if his mother were removed to Mexico,” for this 

10


reason also the BIA ruling failed to provide a “rational and reasoned explanation” 

for its decision. Where the BIA fails to even address the principal issue, its 

decision falls below the minimum acceptable standard of justice. See, e.g., id. at 

915 (“the BIA had an obligation to consider the evidence Habchy presented in light 

of all of his claims.”). 

Ochoa suffered actual prejudice from the ineffective assistance of her former 

counsel in that she would likely have established all the necessary elements of a 

claim for cancellation of removal but for her counsel’s failure to ask necessary 

questions regarding her qualifying relatives. In a similar case, the court found 

ineffective assistance of counsel when an attorney failed to introduce evidence to 

support the immigrant’s required claim of hardship to a qualifying relative. 

Morales Apolinar v. Mukasey, 514 F.3d 893, 899 (9th Cir. 2008) (“Any competent 

attorney would have recognized the strategic value of strengthening [petitioner’s] 

case by qualifying her mother.”). 

The failure by Ochoa’s counsel to marshal and submit evidence of 

Guillermo’s lead poisoning, the resulting disability, and how Ochoa’s removal 

would severely and detrimentally impact him and his access to the special 

education system in this country, is a stark example of ineffective assistance of 

counsel that should justify granting a motion to reopen. This Court recently 

recognized that an attorney’s failure to properly notify a client of a hearing date 

11


provided a sufficient basis for a motion to reopen based on ineffective assistance of 

counsel. Dominguez-Capistran v. Gonzales, 438 F.3d 876, 878 (8th Cir. 2006); 

accord Aris v. Mukasey, 517 F.3d 595 (2d Cir. 2008) (holding that BIA abused its 

discretion in denying a motion to reopen based on ineffective assistance of counsel 

where counsel misinformed client about his required appearance at a hearing). 

Similarly, the Ninth Circuit has held that the BIA abused its discretion in denying a 

motion to reopen where counsel failed to present evidence supporting the primary 

basis for a client’s asylum claim, her past genital mutilation. Mohammed v. 

Gonzales, 400 F.3d 785, 802-03 (2005). 

III. 

If Tamenut Does Apply Here At All, the Full Court Should Now Revisit 

and Overrule that Decision Because It Has Been Called Into Serious 

Question by Kucana. 

If Tamenut does apply, the instant case should be reheard en banc because it 

presents a question of exceptional importance. Kucana casts grave doubt upon 

Tamenut’s conclusion that BIA decisions not to reopen a case sua sponte are 

“committed to agency discretion by law” under 5 U.S.C. § 701(a)(2) and Heckler 

v. Chaney, 470 U.S. 821(1985). Tamenut, 521 F.3d at 1003-05. Although Kucana 

does not overrule Tamenut, 130 S. Ct. at 839 n.18, it leaves little room for 

Tamenut’s assumption that important decisions can be committed to the BIA’s 

unreviewable discretion by the agency’s own regulation. See Gor v. Holder, 607 

12


F.3d 180 (6th Cir. 2010) (calling on the full Sixth Circuit to revisit the same issue 

in light of Kucana). 

At issue in Kucana was whether the proscription of judicial review in 8 

U.S.C. § 1252(a)(2)(B) applies not only to certain BIA determinations specified to 

be discretionary by the statute itself, but also to BIA decisions to deny timely 

motions to reopen, whose discretionary nature is specified only in the regulation 8 

C.F.R. § 1003.2(a). 130 S. Ct at 831. The Supreme Court held that Kucana’s 

motion must remain reviewable for abuse of discretion because no statute delegates 

discretion over that decision to the BIA. Id. The Court reaffirmed the strongest 

presumption that all BIA action is subject to judicial review unless a clear statute 

provides otherwise, and it emphatically rejected the notion that the BIA could have 

“a free hand to shelter its own decisions from abuse-of-discretion appellate court 

review simply by issuing a regulation declaring those decisions ‘discretionary.’” 

130 S. Ct. at 840. 

Tamenut misconstrues Heckler. Heckler stands for the proposition that in 

rare circumstances certain decisions may be wholly committed to agency 

discretion by statute, but it did not contemplate that a regulation alone could 

remove agency action from all judicial scrutiny. 470 U.S. at 830 (“[R]eview is not 

to be had if the statute is drawn so that a court would have no meaningful standard 

against which to judge the agency’s exercise of discretion. In such a case, the 

13


statute (‘law’) can be taken to have ‘committed’ the decision making to the 

agency’s judgment absolutely.”). See Gor, 607 F.3d 188-90. Tamenut does note 

that the Attorney General promulgated 8 C.F.R. § 1003.2(a) pursuant to a statute 

that broadly authorizes rule-making, but that statute is silent as to judicial review. 

521 F.3d at 1004 (discussing 8 U.S.C. § 1103(g)). Moreover, all regulations 

governing the BIA are issued pursuant to the same statute. If this were the 

mechanism committing decisions regarding sua sponte reopening to the BIA’s sole 

discretion, then the statute would render unreviewable every other immigration 

decision that the regulations also label discretionary—including BIA decisions to 

deny timely motions to reopen that Kucana so emphatically declares are 

reviewable. Gor, 607 F.3d at 189-90. Indeed, the regulation regarding timely 

motions to reopen is the same provision that also authorizes the BIA to reopen 

cases sua sponte, and the BIA’s ultimate discretion to deny a timely motion to 

reopen under 8 C.F.R. § 1003.2(a) is just as unbounded as the discretion it has to 

refuse reopening sua sponte. Given all this, the fact that Kucana so emphatically 

affirms circuit court review of timely motions to reopen without offering the 

slightest hint that these BIA decisions could be immune from review under 

Heckler should prompt this Court to revisit Tamenut. 

Federal courts have reviewed immigration decisions to deny reopening for 

nearly a century, mindful that reopening is a crucial procedural safeguard designed 

14


to ensure that aliens are getting a fair chance to have their claims heard. Kucana, 

130 S. Ct. at 827 (citing Dada v. Mukasey, 554 U.S. 1 (2008); Stone v. I.N.S., 514 

U.S. 386, 401 (1995)). In no context is this device more crucial than the present 

one, where a vulnerable and unsophisticated mother of a disabled U.S. citizen child 

has been denied her fair chance to present a meritorious claim for humanitarian 

relief due solely to ineffective assistance of counsel. Perhaps a heightened level of 

deference will be proper when courts review BIA decisions to deny reopening sua 

sponte, see Gor, 607 F.3d at 198 (Cole, J., concurring), but because no statute 

commits these decisions to the BIA’s sole discretion, this Court should overrule 

Tamenut and acknowledge that Congress preserved Petitioner’s access to judicial 

review to ensure the fair disposition of her case. 

GP:2820279 v5 

15


CERTIFICATE OF SERVICE 

I hereby certify that on July 26, 2010, I electronically filed the foregoing 

Petition with the Clerk of the Court for the United States Court of Appeals for the 

Eighth Circuit by using the CM/ECF system. I certify that all participants in the 

case are registered CM/ECF users and that service will be accomplished by the 

CM/ECF system. 

s/Craig A. Brandt 

Craig A. Brandt 

1


8 CFR 1003.2 

§ 1003.2 Reopening or reconsideration before the Board of Immigration Appeals. 

(a) General. The Board may at any time reopen or reconsider on its own motion any 

case in which it has rendered a decision. A request to reopen or reconsider any case in 

which a decision has been made by the Board, which request is made by the Service, 

or by the party affected by the decision, must be in the form of a written motion to the 

Board. 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 motion to reopen even if the party moving has made out a prima 

facie case for relief. 

(b) Motion to reconsider. 

* * * 

(c) Motion to reopen. (1) A motion to reopen proceedings shall state the new facts that 

will be proven at a hearing to be held if the motion is granted and shall be supported by 

affidavits or other evidentiary material. A motion to reopen proceedings for the purpose 

of submitting an application for relief must be accompanied by the appropriate 

application for relief and all supporting documentation. A motion to reopen proceedings 

shall not be granted unless it appears to the Board that evidence sought to be offered is 

material and was not available and could not have been discovered or presented at the 

former hearing; nor shall any motion to reopen for the purpose of affording the alien an 

opportunity to apply for any form of discretionary relief be granted if it appears that the 

alien's right to apply for such relief was fully explained to him or her and an opportunity 

to apply therefore was afforded at the former hearing, unless the relief is sought on the 

basis of circumstances that have arisen subsequent to the hearing. Subject to the other 

requirements and restrictions of this section, and notwithstanding the provisions in 

§1001.1(p) of this chapter, a motion to reopen proceedings for consideration or further 

consideration of an application for relief under section 212(c) of the Act (8 U.S.C. 

1182(c)) may be granted if the alien demonstrates that he or she was statutorily eligible 

for such relief prior to the entry of the administratively final order of deportation. 

Add 1


(2) Except as provided in paragraph (c)(3) of this section, a party may file only one 

motion to reopen deportation or exclusion proceedings (whether before the Board or the 

Immigration Judge) and that motion must be filed no later than 90 days after the date on 

which the final administrative decision was rendered in the proceeding sought to be 

reopened, or on or before September 30, 1996, whichever is later. Except as provided 

in paragraph (c)(3) of this section, an alien may file only one motion to reopen removal 

proceedings (whether before the Board or the Immigration Judge) and that motion must 

be filed no later than 90 days after the date on which the final administrative decision 

was rendered in the proceeding sought to be reopened. 

Add 2


United States Court of Appeals 

FOR THE EIGHTH CIRCUIT 

___________ 

No. 07-3715 

___________ 

Ana Rosa Ochoa, * 

* 

Petitioner, * 

* Petition for Review of 

v. * an Order of the Board 

* of Immigration Appeals. 

Eric H. Holder, Jr., Attorney General * 

of the United States, * 

* 

Respondent. * 

___________ 

Submitted: December 15, 2009 

Filed: May 5, 2010 

___________ 

Before BYE, BEAM, and COLLOTON, Circuit Judges. 

___________ 

BEAM, Circuit Judge. 

Ana Rosa Ochoa petitions for review of an order of the Board of Immigration 

Appeals (BIA) entered on November 2, 2007, denying Ochoa's motion to reopen her 

removal proceedings based upon an alleged ineffective assistance of counsel. Because 

the BIA's order is precluded from our review, we dismiss the petition. 

Add 3


I. BACKGROUND 

Ochoa is a native and citizen of Mexico who entered the United States on or 

about December 15, 1991. On July 26, 2004, the government initiated removal 

proceedings against Ochoa by filing a Notice to Appear, charging her with 

removability. Ochoa conceded removability but filed an application for cancellation 

of removal. 

On January 9, 2006, the Immigration Judge (IJ) orally denied Ochoa's 

application for cancellation of removal. The BIA affirmed this denial on May 25, 

2007. Both the IJ and the BIA determined that Ochoa had good moral character and 

continuous physical presence in the United States, two elements required for 

cancellation of removal, but based their denials upon the conclusion that Ochoa failed 

to show that her removal would result in exceptional and extremely unusual hardship 

to her qualifying relatives, namely her two United States citizen children. 

During the January 9, 2006, hearing before the IJ, Ochoa stated that her son, 

Guillermo, age seven at the time, suffered from lead poisoning that resulted in 

learning difficulties. Following this testimony, Ochoa's counsel indicated to the IJ that 

the issue of Guillermo's poisoning was new to him and requested time to prepare 

corroborating documents and additional evidence in support of that claim. The IJ 

asked Ochoa directly why she had not earlier mentioned Guillermo's condition to her 

attorney and she responded, "I didn't think it was necessary." The IJ declined 

counsel's request and proceeded to render its oral decision. 

Specifically as to the issue of whether Ochoa's removal would create an 

exceptional and extremely unusual hardship to her two children who are United States 

citizens, the IJ held that Ochoa did not meet her burden under the requisite standard. 

In so holding, the IJ relied in part upon Ochoa's failure to submit any corroborating 

evidence regarding her assertions about Guillermo's needs and disabilities due to his 

-2- 

Add 4


lead poisoning. Guillermo's condition was not new (her son was diagnosed at the age 

of two) and there was no evidence regarding economic, political or social conditions 

in Mexico to augment Ochoa's claim. 

The BIA affirmed this ruling, determining that any alleged level of hardship 

claimed by Ochoa falls short of the exceptional and extremely unusual hardship 

standard. Ochoa again argued to the BIA that the IJ should have continued her case 

to permit the submission of evidence concerning the effects of lead exposure on 

Guillermo, but the BIA reiterated the IJ's conclusion that Ochoa had been given ample 

time to present such evidence and failed to do so. The BIA especially noted that 

Ochoa had even failed to present any such evidence before the BIA on appeal. Ochoa 

did not appeal this May 25, 2007, order of the BIA. 

Ochoa did, however, obtain new counsel and sought to reopen her case on July 

23, 2007, pursuant to 8 C.F.R. § 1003.2(a) based upon the ineffectiveness of her prior 

counsel. Ochoa followed the edicts of Matter of Lozada, 19 I&N Dec. 637 (BIA 

1988) 1 and included (1) evidence of a bar complaint she filed against her prior 

1 We initially held Ochoa's case in abeyance until the BIA ruled on a remand 

from Rafiyev v. Mukasey, 536 F.3d 853, 861 (8th Cir. 2008), which held "there is no 

constitutional right under the Fifth Amendment to effective assistance of counsel in 

a removal proceeding," and remanded to the BIA to determine whether there is a nonconstitutional 

right to effective assistance of counsel and whether the BIA would 

assert independent administrative authority to grant relief for ineffective assistance of 

counsel. The BIA issued its ruling in Rafiyev and noted the Attorney General's thenrecent 

opinion in Matter of Compean, 24 I&N Dec. 710 (A.G. 2009), which overruled 

the substantive standards of Matter of Lozada, 19 I&N Dec. 637 (BIA 1988), 

established a new substantive and procedural framework for reviewing all such 

claims, and stated that aliens have no constitutional right to effective assistance of 

counsel. Matter of Compean, 24 I&N Dec. at 713-14. In that light, the BIA in 

Rafiyev determined that Rafiyev failed to comply with the procedural requirements 

of Matter of Lozada (the procedural framework in play at the time of Rafiyev's 

motion) and thus held that reopening based on ineffective assistance of counsel was 

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counsel; (2) an affidavit stating the manner in which her prior counsel handled her 

case; and (3) evidence of her eligibility for cancellation, including general information 

about the effects of lead poisoning and documentary evidence of Guillermo's 

diagnosis and treatment, his resulting learning disabilities and the educational 

disadvantages of special education students in Mexico. 

On November 2, 2007, the BIA denied Ochoa's motion to reopen, reiterating 

Ochoa's own expressed prior belief that the lead poisoning issue was not necessary to 

her case and noting that the submitted documents indicated that Guillermo's lead 

levels had diminished and at one point were in the normal range. Specifically 

discussing the "new evidence" submitted by Ochoa, the Board held that even though 

it was "troubled by evidence indicating that the child suffers from educational 

problems stemming from her 9-year-old child's lead poisoning at the age of two, the 

respondent has failed to demonstrate this evidence was unavailable or could not have 

been discovered or presented at her former hearing." 

not warranted. However, the Board reopened Rafiyev sua sponte on a separate matter. 

Accordingly, even though the Board in Rafiyev did not reach the direct question of 

whether the BIA may assert an independent administrative authority to grant relief for 

ineffective assistance of counsel, the Attorney General made that finding in Matter of 

Compean. 24 I&N Dec. at 714 ("In extraordinary cases, where a lawyer's deficient 

performance likely changed the outcome of an alien's removal proceedings, the Board 

may reopen those proceedings notwithstanding the absence of a constitutional right 

to such relief."). Yet the discussion did not end there. The Attorney General revisited 

the matter yet again, vacated Matter of Compean in its entirety, including the 

pronouncement that there is no constitutional right to effective assistance of counsel 

in removal proceedings, and reestablished Matter of Lozada as the standard to apply 

in these ineffective assistance of counsel claims until further rulemaking is completed. 

Matter of Compean, 25 I&N Dec. 1 (A.G. 2009). Today, then, we have come fullcircle, 

and apply the very same standard as was in place at the time the BIA issued its 

November 2, 2007, order in this matter, using Matter of Lozada as our substantive and 

procedural compass in these claims and recognizing that, at least in the interim, the 

Board does have the discretion to reopen removal proceedings in the face of claims 

of ineffective assistance of counsel. Matter of Compean, 25 I&N Dec. at 3. 

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Ochoa petitions for review of the BIA's November 2, 2007, order. 2 

II. 

DISCUSSION 

Before reaching the merits of this case, we find ourselves halted by precedent. 

Noted above, Ochoa filed her motion to reopen with the BIA "pursuant to 8 C.F.R. 

1003.2(a)" and requested that the BIA reopen "on their own motion." The Board, 

however, may have treated Ochoa's motion under the rubric of 8 C.F.R. § 1003.2(c), 

which contemplates motions to reopen on the basis of new, material and previously 

unavailable evidence. This is possible because first the BIA noted that Ochoa's 

motion is "timely," a determination pertinent under § 1003.2(c). And, the BIA used 

Matter of Coelho, 20 I&N Dec. 464 (BIA 1992), as its governing legal standard in 

evaluating Ochoa's evidence. Matter of Coelho is a case that, in part, discusses the 

heavy burden laid upon a movant when proffering new evidence in a motion to reopen 

and did not involve the exercise of the Board's sua sponte authority. Id. at 473. While 

the Board's treatment of the motion is unclear, and the stated basis for Ochoa's motion 

is a seemingly technical difference on the surface, the basis is indeed most critical, for 

it stops us in our tracks today. 

2 Although Ochoa's petition is expressly limited to a request to review the BIA's 

November 2, 2007, order, she additionally seeks review of the BIA's May 25, 2007, 

order affirming the IJ's January 9, 2006, denial of her application for cancellation of 

removal. We lack jurisdiction to review the BIA's May 25, 2007, order. "We lack 

jurisdiction to review [a denial of a cancellation of removal for a failure to prove an 

exceptional and extremely unusual hardship to an American-citizen child] because it 

'is precisely the discretionary determination that Congress shielded from our review.'" 

Zacarias-Velasquez v. Mukasey, 509 F.3d 429, 434 (8th Cir. 2007) (quoting Meraz- 

Reyes v. Gonzales, 436 F.3d 842, 843 (8th Cir. 2006) (per curiam)); see 8 U.S.C. § 

1252(a)(2)(B)(i) ("Notwithstanding any other provision of law . . . no court shall have 

jurisdiction to review any judgment regarding the granting of relief under section ... 

1229(b) . . . ."). 

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In Tamenut v. Mukasey, 521 F.3d 1000, 1005 (8th Cir. 2008) (en banc), 3 we 

held that "the BIA's decision whether to reopen proceedings on its own motion under 

8 C.F.R. § 1003.2(a) is committed to agency discretion by law" and is thus 

unreviewable by an appellate court. In Tamenut, after making this determination we 

concluded that we "lack[ed] jurisdiction" over Tamenut's challenge to the BIA and we 

dismissed the petition accordingly. 521 F.3d at 1005. More precisely, the dismissal 

in Tamenut, while the proper disposition, was due to our inability to review an agency 

action "committed to agency discretion by law" under § 701(a)(2) of the 

Administrative Procedure Act (APA), not because we lacked jurisdiction. Id. at 1003. 

The APA is not an independent jurisdictional provision. Califano v. Sanders, 

430 U.S. 99, 105-06 (1977). The APA is a procedural statute that provides no 

substantive requirements but merely provides the framework for judicial review of 

agency action. Preferred Risk Mut. Ins. Co. v. United States, 86 F.3d 789, 792 (8th 

Cir. 1996). The Supreme Court's recent proscription against "drive-by jurisdictional 

rulings" compels us to make this distinction in the interest of facilitating the clarity 

sought by the Court. Reed Elsevier, Inc. v. Muchnick, 130 S. Ct. 1237, 1244 (2010) 

(quotation omitted); see also Oryszak v. Sullivan, 576 F.3d 522, 524-25 (D.C. Cir. 

2009) (explaining that a federal court has jurisdiction under 28 U.S.C. § 1331 to hear 

a claim under the APA, but because the APA does not apply to agency action 

committed to agency discretion by law, a plaintiff who challenges such an action 

cannot state a claim under the APA and the court will properly grant a motion to 

dismiss the complaint for failure to state a claim). When a plaintiff complains about 

an action that is committed to agency discretion by law, it does not mean that a court 

lacks subject matter jurisdiction over the claim. Instead, it means that there is no law 

to apply because the court has no meaningful standard against which to judge the 

3 This opinion was left intact by Kucana v. Holder, 130 S. Ct. 827 (2010), which 

"express[ed] no opinion on whether federal courts may review the Board's decision 

not to reopen removal proceedings sua sponte." Id. at 839 n.18. 

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agency's unfettered exercise of discretion. Heckler v. Chaney, 470 U.S. 821, 830 

(1985); Oryszak, 576 F.3d at 526. 

Under these circumstances, we see no way around Tamenut's proscription given 

Ochoa's express reliance on § 1003.2(a) throughout her filings and argument. Even 

if the BIA addressed the merits of Ochoa's claim under a § 1003.2(c) analysis, it does 

not circumvent the posture of the motion and the petition now before us. 4 

Accordingly, we are unable to review the BIA's determination on appeal and 

we dismiss the petition for review. 

COLLOTON, Circuit Judge, concurring in part and dissenting in part. 

The parties agree that this court should review the decision of the Board of 

Immigration Appeals (“BIA”) denying Ana Rosa Ochoa’s motion to reopen her 

removal proceedings. I disagree with the court’s contrary conclusion, and I further 

conclude that the BIA abused its discretion in denying the motion. Therefore, I would 

remand the case for further proceedings. 5 Add 9 

4 One could possibly argue that by treating Ochoa's motion as one filed under 

§ 1003.2(c), if indeed it did, the Board necessarily provided us a plausible meaningful 

standard we would normally find lacking in the sua sponte context. Yet, even were 

we to circumvent the wall we find firmly erected by Tamenut and review the BIA's 

November 2, 2007, order, we would dismiss nonetheless. The BIA acted within its 

discretion in determining that Ochoa failed to meet her "heavy burden" and in denying 

her motion to reopen. Matter of Coelho, 20 I&N Dec. at 473; Matter of Lozada, 19 

I&N Dec. at 638-39. 

5 I agree with the court that we lack jurisdiction to review the BIA’s separate 

order of May 25, 2007. Ante, at 5 n.2. 

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An alien may file one motion to reopen removal proceedings as of right, as long 

as the motion is filed within ninety days after the date on which the final 

administrative decision is rendered. 8 U.S.C. § 1229a(c)(7); 8 C.F.R. § 1003.2(c)(2). 

We review the BIA’s decision on such a motion under a deferential abuse-ofdiscretion 

standard. Kucana v. Holder, 130 S. Ct. 827, 834 (2010). The governing 

regulations also provide that the BIA “may at any time reopen or reconsider on its 

own motion any case in which it has rendered a decision.” 8 C.F.R. § 1003.2(a). The 

decision whether to exercise this sua sponte reopening authority is committed to 

agency discretion by law within the meaning of the Administrative Procedure Act, 5 

U.S.C. § 701(a)(2). Tamenut v. Mukasey, 521 F.3d 1000, 1005 (8th Cir. 2008) (en 

banc) (per curiam). 

After the BIA affirmed the decision of an immigration judge denying Ochoa’s 

request for cancellation of removal, Ochoa filed a motion to reopen alleging 

ineffective assistance of former counsel. She filed the motion within ninety days of 

the BIA’s final administrative decision, in accordance with 8 U.S.C. 

§ 1229a(c)(7)(C)(i) and 8 C.F.R. § 1003.2(c)(2). The BIA denied the motion, and 

Ochoa filed a timely petition for review. See 8 U.S.C. § 1252(b)(1). This court thus 

has jurisdiction to review the BIA’s denial of Ochoa’s motion to reopen. See 8 U.S.C. 

§ 1252(a)(1); Tamenut, 521 F.3d at 1003. 

The court reasons that the decision is unreviewable because Ochoa’s pleading 

before the BIA stated that she moved to reopen “pursuant to 8 C.F.R. [§] 1003.2(a),” 

and “requested that the BIA reopen ‘on their own motion.’” Ante, at 5. The court 

evidently concludes that the agency’s only action in response to Ochoa’s motion was 

a refusal to reopen the case on its own motion, and that this decision is committed to 

agency discretion under Tamenut. There are several difficulties with this conclusion. 

Ochoa’s reference to 8 C.F.R. § 1003.2(a) does not by itself imply a request for 

the BIA to exercise its authority to reopen sua sponte. As the heading of § 1003.2(a) 

-8- 

Add 10


indicates, the subsection sets forth “[g]eneral” provisions about the filing of motions 

to reopen, including motions as of right by a party under 8 U.S.C. § 1229a(c)(7) and 

8 C.F.R. § 1003.2(c). The regulation does not speak only to action on the BIA’s own 

motion. For example, § 1003.2(a) provides that “[a] request to reopen or reconsider 

any case in which a decision has been made by the Board, which request is made by 

the Service, or by the party affected by the decision, must be in the form of a written 

motion to the Board.” 8 C.F.R. § 1003.2(a) (emphasis added). 

It is also not clear from the text of Ochoa’s motion that she sought reopening 

on the BIA’s own motion. The sentence in the motion to which the court refers is 

grammatically incoherent: “Respondent requests that the Board of Immigration 

Appeals (BIA) this case on their own motion to Reopen.” The plural pronoun “their” 

does not parallel either Ochoa or the BIA, both of which are singular. But even 

assuming that Ochoa did ask the BIA to reopen on its own motion, her motion did not 

state that she relied exclusively on this purely discretionary form of relief. An alien 

may follow a belt-and-suspenders approach, asking the BIA to reopen on the alien’s 

timely motion and on the BIA’s own motion. 

Most important, we review the BIA’s decision, not Ochoa’s motion. The BIA 

was free to construe Ochoa’s filing as a motion by a party under 8 U.S.C. 

§ 1229a(c)(7), and it is clear that the agency did so. The BIA concluded that Ochoa 

had “filed a timely motion to reopen,” A.R. 2 (emphasis added), a conclusion that is 

relevant only to a motion by a party, as there is no time limit on the BIA’s authority 

to reopen on its own motion. The BIA then analyzed Ochoa’s motion according to the 

legal standard established in Matter of Coelho, 20 I. & N. Dec. 464 (BIA 1992). 

Coelho applied the standards of INS v. Doherty, 502 U.S. 314 (1992), a decision that 

concerned a motion to reopen by a party and established that a denial of such a motion 

is subject to judicial review for abuse of discretion. Id. at 323. There is not even a 

hint in the BIA’s decision on Ochoa’s motion that it considered whether to exercise 

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its “limited discretionary powers” to reopen cases on its own motion. See In re J-J-, 

21 I. & N. Dec. 976, 984 (BIA 1997). 

The Attorney General recognizes that the agency’s decision on the motion to 

reopen is judicially reviewable. The respondent’s brief concedes that we should 

review the BIA’s decision denying Ochoa’s motion for abuse of discretion. I agree 

with this submission, and conclude that this court should review the BIA’s denial. 

As noted, we review the BIA’s denial of a motion to reopen for abuse of 

discretion. Motions to reopen are disfavored, because they undermine the 

government’s legitimate interest in finality, and the Attorney General’s discretion in 

ruling on the motions is broad. Doherty, 502 U.S. at 323; Alemu v. Mukasey, 509 F.3d 

907, 909 (8th Cir. 2007). Nonetheless, we will reverse if the BIA fails to give a 

rational and reasoned explanation for its decision. Alemu, 509 F.3d at 909; Perwolf 

v. INS, 783 F.2d 112, 113 (8th Cir. 1985). The BIA’s cursory decision on Ochoa’s 

motion cannot withstand even this deferential review. 

Ochoa’s motion urged the BIA to reopen her removal proceedings, under the 

rule established by Matter of Lozada, 19 I. & N. Dec. 637 (BIA 1988), because her 

former counsel was ineffective in pursuing her application for cancellation of removal. 

Specifically, Ochoa observed that a successful application for cancellation must 

demonstrate that removal would “result in exceptional and extremely unusual 

hardship” to a spouse, parent, or child who is a citizen of the United States or lawful 

permanent resident. 8 U.S.C. § 1229b(b)(1)(D). Her motion argued that she could 

have made this showing with respect to her nine-year-old son, who is a United States 

citizen. But she complained that former counsel failed to obtain evidence about the 

hardship that removal would cause, and failed to include such evidence in Ochoa’s 

administrative submissions. The motion to reopen recounted that Ochoa’s son 

suffered lead poisoning from birth through the age of three, that he is a special 

education student who is functioning below his grade level, and that Mexico “does not 

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give every child with educational disabilities the services required,” while such 

services are “mandatory” in the United States. 

The BIA, while acknowledging that Ochoa satisfied the procedural 

requirements of Lozada, answered her argument in two sentences. First, the BIA cited 

Ochoa’s admission that she did not previously think the lead poisoning issue was 

necessary to her case, and that she did not say anything to her attorney about it during 

the removal proceedings. This conclusion, however, is not responsive to Ochoa’s 

argument that counsel had a professional obligation to inquire about matters that 

would assist in making a case for cancellation of removal, and that counsel should 

have elicited the information about lead poisoning from Ochoa. The BIA may or may 

not believe that counsel had such an obligation, but we do not know, because the BIA 

never addressed the point. 

Second, the BIA observed that the son’s lead levels had diminished, and that 

his levels were in the normal range at the time of the last reading in 2002. But 

Ochoa’s contention is not that her son currently suffers from excessive lead levels. 

Her claim is that he suffered lead poisoning in his early years, and that this poisoning 

resulted in educational disabilities that are still present. The BIA never addressed 

whether it believed that differences between special education services available in 

Mexico and in the United States would amount to “exceptional and extremely unusual 

hardship” for Ochoa’s son if his mother were removed to Mexico. Thus, we have no 

decision from the BIA on whether the alleged ineffective assistance of counsel caused 

actual prejudice in the removal proceedings. 

Because the BIA failed to render a reasoned decision on Ochoa’s motion to 

reopen, I would remand the case for further proceedings with respect to Ochoa’s claim 

of ineffective assistance of counsel. As there is no constitutional right to effective 

counsel in removal proceedings, a finding by the BIA that Ochoa established a claim 

under the standards set forth in Matter of Lozada would require the BIA also to 

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address whether it recognizes a purely administrative right to effective counsel in 

removal proceedings. See Rafiyev v. Mukasey, 536 F.3d 853, 861 (8th Cir. 2008). 

______________________________ 

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