Nos. 12-­--3658 & 13-­--1295 JAYESH KUMAR SHAH v. ERIC H. HOLDER, JR., Attorney General of the United States

In the
United States Court of Appeals
For the Seventh Circuit
____________________
Nos. 12-­‐‑3658 & 13-­‐‑1295
JAYESH KUMAR SHAH,
Petitioner,
v.
ERIC H. HOLDER, JR., Attorney General of the United States,
Respondent.
____________________
Petitions for Review of Orders of the
Board of Immigration Appeals
____________________
ARGUED OCTOBER 8, 2013 — DECIDED DECEMBER 4, 2013
____________________
Before BAUER, POSNER, and EASTERBROOK, Circuit Judges.
EASTERBROOK, Circuit Judge. Fifteen years after his 1990
conviction for aggravated criminal sexual abuse, Jayesh Shah
was ordered removed to India. He did not seek judicial re-­‐‑
view of that order but did file a motion to reconsider and pe-­‐‑
tition for review of its denial. He contended that he should
have been granted a waiver of removal under §212(c) of the
Immigration and Nationality Act, 8 U.S.C. §1182(c) (1994
ed.), as it stood before its repeal in 1996. That argument got

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Nos. 12-­‐‑3658 & 13-­‐‑1295 2
him nowhere, because he ignored the principal ground on
which the immigration judge and the Board of Immigration
Appeals had decided against him: the nature of his crime led
officials to reject his application as a matter of discretion,
whether or not he remained eligible for §212(c) relief despite
the repeal. (Some aliens do remain eligible. See INS v. St.
Cyr, 533 U.S. 289 (2001).) Asking this court to declare him
eligible was pointless, we held, because he had lost on a dis-­‐‑
cretionary ground independent of the 1996 law’s effect. Shah
v. Gonzales, No. 05-­‐‑3786 (7th Cir. Sept. 26, 2006) (nonprece-­‐‑
dential order).
Shah has lived in India since 2007. In 2012 he filed a mo-­‐‑
tion to reopen the proceedings and, after the BIA denied that
motion, a motion to reconsider. He relied on Judulang v.
Holder, 132 S. Ct. 476 (2011), which rejected the Board’s con-­‐‑
clusion, expressed in Matter of Blake, 23 I&N Dec. 722 (2005),
that aliens are not eligible for §212(c) relief unless the ground
of their removal was comparable to a ground of exclusion in
pre-­‐‑1996 practice. The Board observed, however, that Judu-­‐‑
lang is limited to the question of eligibility, while Shah’s re-­‐‑
quest was denied as an exercise of discretion.
The Board also observed that the motion to reopen is un-­‐‑
timely. Except in asylum proceedings, an alien has only 90
days to seek reopening. 8 C.F.R. §1003.2(c)(2). Shah waited
more than six years. In order to avoid the effect of the mo-­‐‑
tion’s untimeliness, he asked the Board to reopen sua sponte
(that is, on its own motion). The BIA recognized that it had
the authority to do this but remarked that Shah’s situation
did not merit a favorable exercise of discretion—not only be-­‐‑
cause of the nature of his crime but also because Shah is no
longer in the United States.

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3 Nos. 12-­‐‑3658 & 13-­‐‑1295
Shah has filed two petitions for judicial review, one from
the order declining to reopen the proceedings, and the other
from the order declining to reconsider that order. He con-­‐‑
tends that Judulang requires the Board to reopen his proceed-­‐‑
ings and that the Board erred in giving weight to his 2007
departure from the United States. A major hurdle to the con-­‐‑
sideration of either contention is the 90-­‐‑day deadline for mo-­‐‑
tions to reopen. In an effort to get around that time limit,
Shah asked the Board to reopen the proceedings sua sponte.
It is difficult to understand how action in response to a
litigant’s motion could occur sua sponte. That phrase means
action on a tribunal’s own initiative. If the tribunal acts in
response to a litigant’s request, the step is not on its own ini-­‐‑
tiative. Cf. Calderon v. Thompson, 523 U.S. 538, 553–54 (1998).
An agency’s power of self-­‐‑initiated self-­‐‑correction does not
imply that a party can avoid time limits by asking the tribu-­‐‑
nal to engage in a sham—and it would be pretense for an
agency or court to claim to act sua sponte when it is just
granting a litigant’s motion. A litigant could ask the tribunal
to excuse non-­‐‑compliance with a time limit; that’s effectively
what Shah did; but such a request is not a proposal that the
tribunal act on its own initiative.
Shah does not contend that the BIA is authorized to ex-­‐‑
cuse an alien’s noncompliance with the 90-­‐‑day limit in 8
C.F.R. §1003.2(c)(2). Nor does he contend that, if the Board
has such power, it abused its discretion in denying his re-­‐‑
quest. Instead the petitions for judicial review are predicated
on the idea that the judiciary can review the Board’s decision
not to act sua sponte. We held otherwise in Anaya-­‐‑Aguilar v.
Holder, 683 F.3d 369 (7th Cir. 2012), observing that a court

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Nos. 12-­‐‑3658 & 13-­‐‑1295 4
has no law to apply, because neither a statute nor any regu-­‐‑
lation requires the Board ever to reopen sua sponte.
If the Board said something like: “We would have reo-­‐‑
pened this proceeding, except that the alien wrote an op-­‐‑ed
piece that critiques immigration policy, so we have decided
not to help him”, that violation of the first amendment could
be reviewed under the proviso for pure questions of law in 8
U.S.C. §1252(a)(2)(D). See Zambrano-­‐‑Reyes v. Holder, 725 F.3d
744 (7th Cir. 2013). Shah tries to bring his situation within
that proviso, but it does not assist him.
The Board’s principal reason for denying Shah’s belated
application for relief is the nature of his crime (a sex offense
against a girl under the age of ten). That crime led an IJ and
the Board to conclude in 2005 that, as a matter of administra-­‐‑
tive discretion, Shah would not receive §212(c) relief even if
St. Cyr places him in the category of those still eligible for
consideration. Since the agency was (and remains) unwilling
to grant him that benefit, it did not matter whether he was
eligible. And by the time Shah moved to reopen in 2012, he
needed two favorable exercises of discretion: first to reopen
the proceedings, and then to grant §212(c) relief. The Board
stated that the nature of his crime justifies an unfavorable
decision at each discretionary step.
Shah could have sought judicial review of the Board’s
2005 decision, but he did not. He asked us to review only the
Board’s decision declining to rehear its original order—and,
in seeking our review, he did not contest the Board’s conclu-­‐‑
sion that the nature of his crime meant that he would not be
allowed to stay in the United States whether or not he was
eligible under §212(c). That’s why we held in 2006 that the
eligibility issue was not properly presented. Now, in 2013,

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5 Nos. 12-­‐‑3658 & 13-­‐‑1295
Shah wants us to direct the Board to reconsider a question
that Shah himself bypassed in 2006. Whatever the permissi-­‐‑
ble scope of sua sponte reopenings, the Board is entitled to
conclude that an alien cannot avoid the consequences of his
own litigation strategy by filing years-­‐‑late requests with a
“sua sponte” label attached. And because the discretionary
question that Shah bypassed in 2006 remains dispositive
against him, the two legal issues that he has briefed in 2013
could not support a decision in his favor.
Not that either of those legal contentions is sound. Alt-­‐‑
hough Marin-­‐‑Rodriguez v. Holder, 612 F.3d 591 (7th Cir. 2010),
holds that the Board has the power to reopen a removal pro-­‐‑
ceeding after an alien has left this nation, it recognizes that
the alien’s current location is a factor that the Board may
consider in considering a request that an order of removal be
set aside.
Section 212(c) allowed the agency to provide relief to an
alien who had lived in the United States for at least seven
years and whose deportation would cause hardship. After
an alien has left the United States and adjusted to life in his
native country, the hardship of changing countries has oc-­‐‑
curred. Perhaps a return could curtail ongoing hardship;
that’s one reason why the Board is allowed to entertain ap-­‐‑
plications by aliens residing in their home countries; but the
change of residence alters the balance of equities under
§212(c) and similar statutes. The Board therefore did not vio-­‐‑
late any rule of law in considering Shah’s current location
when deciding whether to exercise discretion in his favor.
As for Judulang: Shah assumes that administrative agen-­‐‑
cies must apply all new decisions retroactively but does not
explain why. Nothing in the statutes or regulations govern-­‐‑

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Nos. 12-­‐‑3658 & 13-­‐‑1295 6
ing immigration proceedings requires the agency to reopen
closed proceedings whenever, years later, the Supreme
Court or a court of appeals disagrees with the Board’s legal
conclusions.
Regulation 1003.2(c)(2) is for immigration proceedings
what Fed. R. Civ. P. 60(b)(6), which authorizes federal dis-­‐‑
trict courts to reopen final judgments, is for civil litigation.
District courts cannot use Rule 60(b)(6) to apply new deci-­‐‑
sions retroactively to closed civil cases. See, e.g., Gonzalez v.
Crosby, 545 U.S. 524, 536–38 (2005); Ackermann v. United
States, 340 U.S. 193 (1950). Immigration proceedings also are
civil, and it is hard to see why what is forbidden in other civ-­‐‑
il litigation should be compulsory in immigration proceed-­‐‑
ings. Even in criminal prosecutions, full retroactivity is a rare
exception to the norm that final judgments survive changes
in the law. See, e.g., Whorton v. Bockting, 549 U.S. 406 (2007).
Judulang applies to all immigration cases that were pending
on the day of its release, but the Board need not reopen
closed cases in order to apply its holding.
The petitions for review are dismissed.

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