UNITED STATES COURT OF APPEALS 

FOR THE TENTH CIRCUIT 

 

ASEL HUSSAIN AL FATLAWI, 

 Petitioner, 

v. 

ERIC H. HOLDER, JR., United States 

Attorney General, 

 Respondent. 

------------------------------------------------ 

AMERICAN IMMIGRATION 

COUNCIL; AMERICAN 

IMMIGRATION LAWYERS 

ASSOCIATION, 

 Amici Curiae. 

No. 14-9565 

(Petition for Review)

 

ORDER AND JUDGMENT*

 

Before TYMKOVICH, O’BRIEN, and GORSUCH, Circuit Judges. 

 

 

*

 After examining the briefs and appellate record, this panel has determined 

unanimously to grant the parties’ request for a decision on the briefs without oral 

argument. See Fed. R. App. P. 34(f); 10th Cir. R. 34.1(G). The case is therefore 

ordered submitted without oral argument. This order and judgment is not binding 

precedent, except under the doctrines of law of the case, res judicata, and collateral 

estoppel. It may be cited, however, for its persuasive value consistent with 

Fed. R. App. P. 32.1 and 10th Cir. R. 32.1. 

FILED 

United States Court of Appeals 

Tenth Circuit 

March 23, 2015

Elisabeth A. Shumaker 

Clerk of Court

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 Asel Hussain Al-Fatlawi, a native and citizen of Iraq, seeks review of the 

Board of Immigration Appeals’ (BIA’s) decision affirming the Immigration Judge’s 

(IJ’s) denial of his motion to reopen. Exercising jurisdiction under 8 U.S.C. 

§ 1252(a)(1), we grant the petition. 

BACKGROUND

 Al-Fatlawi was admitted to the United States as a refugee in 1993. Later, he 

became a lawful permanent resident (LPR). 

 In 2000, Al-Fatlawi was convicted in Utah state court of sexually abusing a 

child. See Utah Code Ann. § 76-5-404.1. Consequently, the former Immigration and 

Naturalization Service commenced removal proceedings on the basis of an 

aggravated-felony conviction. In 2001, an IJ found Al-Fatlawi removable, but 

granted him deferral of removal under the Convention Against Torture. 

 In 2013, Al-Fatlawi filed in the Immigration Court a “motion to reopen and 

re-calendar on sua sponte” grounds so he could seek a waiver of inadmissibility and 

an adjustment of status through his wife, who is a United States citizen. R. at 126. 

The IJ denied the motion. The IJ first concluded that a case could not be 

recalendared after a final order of removal unless the case is reopened. But 

Al-Fatlawi’s case could not be reopened, the IJ reasoned, because the Tenth Circuit 

had not yet joined the majority of circuit courts holding that LPR aggravated felons 

are eligible for a waiver of inadmissibility if they attained LPR status after their 

admission to the United States. The BIA summarily affirmed the IJ’s decision. 

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DISCUSSION

 Where, as here, “the BIA summarily affirms the decision of the IJ, we review 

the IJ’s decision as the final agency action.” Thongphilack v. Gonzales, 506 F.3d 

1207, 1209 (10th Cir. 2007). But we lack jurisdiction to review a decision not to 

reopen removal proceedings sua sponte “because there are no standards by which to 

judge the agency’s exercise of discretion.” Infanzon v. Ashcroft, 386 F.3d 1359, 

1361 (10th Cir. 2004). 

 Nevertheless, we retain “jurisdiction to review constitutional claims or 

questions of law raised in a petition for review.” Salgado-Toribio v. Holder, 

713 F.3d 1267, 1271 (10th Cir. 2013) (internal quotation marks omitted), see, e.g., 

Mendiola v. Holder, 576 F. App’x 828, 837 (10th Cir. 2014) (observing that the 

denial of a motion to reopen sua sponte can be reviewed to determine whether the 

agency “applied the proper constitutional and legal framework in making its 

decision”); Pllumi v. Att’y Gen. of U.S., 642 F.3d 155, 160 (3d Cir. 2011) (holding 

that “when presented with a . . . decision rejecting a motion for sua sponte reopening, 

[a court] may exercise jurisdiction to the limited extent of recognizing” reliance “on 

an incorrect legal premise”); Mahmood v. Holder, 570 F.3d 466, 469 (2d Cir. 2009) 

(stating that “where the Agency may have declined to exercise its sua sponte

authority because it misperceived the legal background . . . , remand to the Agency 

for reconsideration in view of the correct law is appropriate”). Al-Fatlawi recognizes 

the jurisdictional limitation present in this case, and confines his argument to 

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“whether the [IJ] erred in holding that [he] is not statutorily eligible for a” waiver of 

inadmissibility. Reply Br. at 12. 

 Under 8 U.S.C. § 1182(h), “[n]o waiver [of inadmissibility] shall be granted 

under this subsection in the case of an alien who has previously been admitted to the 

United States as an alien lawfully admitted for permanent residence if . . . since the 

date of such admission the alien has been convicted of an aggravated felony.” 

Recently, in Medina-Rosales v. Holder, No. 14-9541, 2015 WL 756345 (10th Cir. 

Feb. 24, 2015), this court joined the majority of circuits and held that § 1182(h) 

“clearly and unambiguously precludes eligibility for a waiver after conviction of an 

aggravated felony only if the alien received LPR status at the time the alien lawfully 

entered the United States, but it does not apply to an alien who obtained LPR status 

after having been present in the United States before acquiring that status.” Id. at *3. 

 Because Al-Fatlawi obtained LPR status after being present in the United 

States, his conviction does not render him ineligible for a waiver of inadmissibility. 

Although the IJ did not have the benefit of Medina-Rosales, the denial of 

Al-Fatlawi’s motion to reopen arises from a misinterpretation of § 1182(h), requiring 

remand to the BIA. 

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CONCLUSION

 Al-Fatlawi’s petition for review is granted and the case is remanded for further 

proceedings. 

 Entered for the Court 

 Timothy M. Tymkovich 

 Circuit Judge 

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