Bharani Kumar Anandakrishnan v. MERRICK B. GARLAND, Attorney General of the United States

United States Court of Appeals
For the Seventh Circuit
Chicago, Illinois 60604
Argued September 13, 2023
Decided December 20, 2023
Before
JOEL M. FLAUM, Circuit Judge
KENNETH F. RIPPLE, Circuit Judge
MICHAEL Y. SCUDDER, Circuit Judge
No. 22-2638
BHARANI KUMAR ANANDAKRISHNAN,
Petitioner,
v.
MERRICK B. GARLAND, Attorney General
of the United States,
Respondent.
Petition for Review of
an Order of the
Board of Immigration Appeals.
No. A078-694-259
O R D E R
Bharani Anandakrishnan, an Indian national, lawfully entered the United States
in 1996 on a non-immigrant H-1B visa. After working for several years as an IT specialist,
Anandakrishnan successfully adjusted his status to that of a lawful permanent resident.
In 2007, however, he was convicted in an Illinois court of misdemeanor domestic battery,
720 ILCS 5/12–3.2(a)(1), an offense that made him removable under the immigration laws.
See 8 U.S.C. § 1227(a)(2)(E)(i). This led the Department of Homeland Security several
years later to initiate removal proceedings against him.
After some initial delay, Anandakrishnan appeared in a Chicago immigration
court for a master calendar hearing before an immigration judge. At that hearing,
NONPRECEDENTIAL DISPOSITION
To be cited only in accordance with Fed. R. App. P. 32.1

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Anandakrishnan’s lawyer, Angela Kwan, sought a continuance. The immigration judge
granted the request and, with Anandakrishnan present, orally scheduled
Anandakrishnan’s removal hearing for March 7, 2018. When that day came, however,
neither Anandakrishnan nor his attorney showed up. Declining to delay matters further,
the immigration judge ordered Anandakrishnan removed in absentia. See 8 U.S.C.
§ 1229a(b)(5)(A).
In the more than five years that have passed since the entry of that order,
Anandakrishnan has sought to stave off removal through a series of motions to reopen—
one filed directly with the immigration judge and two more filed with the Board of
Immigration Appeals. In this petition for review, Anandakrishnan challenges the Board’s
denial of a motion for reconsideration he filed after the Board denied his third motion to
reopen. Although the procedural history of this case—and the scope of our review—defy
easy summary, the necessary resolution is straightforward. We lack jurisdiction to review
many of Anandakrishnan’s arguments and the rest lack merit.
I
Once entered, in absentia removal orders like Anandakrishnan’s can be very
difficult to rescind. Because Anandakrishnan unquestionably received sufficient notice
of the date, time, and place of his removal hearing, see 8 U.S.C. § 1229a(b)(5)(C)(ii), the
Immigration and Nationality Act permitted the immigration judge to rescind
Anandakrishnan’s removal order and reopen his case “only” if Anandakrishnan could
demonstrate, in a motion to reopen filed within 180 days, that his “failure to appear was
because of exceptional circumstances” that were “beyond [his] control.” 8 U.S.C.
§ 1229a(b)(5)(C), (C)(i), (e)(1); see also Kay v. Ashcroft, 387 F.3d 664, 670–71 (7th Cir. 2004)
(explaining and applying standard); Marinov v. Holder, 687 F.3d 365, 368 (7th Cir. 2012)
(same).
Anandakrishnan attempted to make this showing in an initial motion to reopen
filed just one week after his removal hearing. In that motion, he explained that he and
Ms. Kwan had “confused” his court date with that of another one of her clients and
argued that this confusion warranted reopening the prior removal proceeding. As the
immigration judge recognized, however, Anandakrishnan’s explanation fell far short of
the statutory standard because the circumstances he identified were not “beyond [his]
control.” See Kay, 387 F.3d at 670 (quoting 8 U.S.C. § 1229a(e)(1)). Recalling that he gave
Anandakrishnan oral notice of the date of his removal hearing—a fact that has at all times
remained uncontested, including throughout this appeal—the immigration judge
determined that any confusion that arose after Anandakrishnan received that notice was
not beyond Anandakrishnan’s control. The immigration judge therefore denied the

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motion to reopen. Anandakrishnan appealed, but the Board of Immigration Appeals
agreed with the immigration judge’s ruling.
This disposition dealt Anandakrishnan’s prospects for lifting the removal order a
serious blow. With an exception not relevant here, non-citizens may file only a single
motion to reopen under 8 U.S.C. § 1229a(b)(5)(C). See 8 U.S.C. § 1229a(c)(7)(A). With
dwindling options under the INA, Anandakrishnan filed a second motion to reopen in
December 2019, this time invoking the Board’s sua sponte authority to reopen removal
proceedings. That power exists by virtue of 8 C.F.R. § 1003.2(a), a regulation which vests
the Board with the discretion to “at any time reopen or reconsider a case in which it has
rendered a decision.” Id.
The difficulty for Anandakrishnan, then as now, was that the Board exercises this
power only in “exceptional situations.” Matter of J–J–, 21 I. & N. Dec. 976, 984 (B.I.A. 1997);
Matter of G–D–, 22 I. & N. Dec. 1132, 1133–34 (B.I.A. 1999) (emphasizing that sua sponte
reopening is “an extraordinary remedy reserved for truly exceptional situations”).
Anandakrishnan attempted to convince the Board that his was such a case by directing
attention to his eligibility for cancellation of removal and the hardship removal would
cause his family. The Board was not convinced, however, and declined to reopen
Anandakrishnan’s case.
At this point, Anandakrishnan began to develop doubts about Ms. Kwan’s
representation. These doubts led Anandakrishnan to meet with, and ultimately retain,
new counsel. Anandakrishnan’s new lawyer, Robert D. Vinikoor, found the work of his
predecessor lacking. Ms. Kwan’s alleged deficiencies extended beyond her failure to
apprise Anandakrishnan of the date of his removal hearing. By Mr. Vinikoor’s measure,
Ms. Kwan had also failed to support Anandakrishnan’s initial motion to reopen with
evidence—a point the immigration judge stressed in denying relief—and made
representations to both the immigration judge and the Board that Anandakrishnan
believes were self-serving and detrimental to his prospects for relief.
These and other alleged shortcomings lay at the foundation of Anandakrishnan’s
third motion to reopen, which charged Ms. Kwan with ineffective assistance of counsel
and sought reopening to remedy her inadequate representation. The precise arguments
advanced in that motion are difficult to discern. As best we can tell, Anandakrishnan
principally sought sua sponte reopening under 8 C.F.R. § 1003.2(a). But he also sought
equitable tolling of the INA’s time and number restrictions, which would seem to indicate
that he intended to proceed under 8 U.S.C. § 1229a(b)(5)(C)(i) as well.
Not addressing Anandakrishnan’s request for equitable tolling, the Board treated
the motion as involving only a request for sua sponte reopening. So framed, the Board

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found for the second time that Anandakrishnan’s case—even when considered through
the lens of Ms. Kwan’s allegedly ineffective assistance of counsel—did not involve the
kind of “truly exceptional situation” for which relief under 8 C.F.R. § 1003.2(a) is reserved.
It reached this conclusion for two primary reasons. First, in light of Anandakrishnan’s
receipt of “oral notice of [his] hearing date,” the Board was not convinced that Ms.
Kwan’s alleged ineffectiveness was the “sole[ ]” reason for his failure to appear. And even
if it were, the Board found that Anandakrishnan had failed to diligently pursue his claims
of ineffectiveness.
Anandakrishnan sought reconsideration, pointing out that the Board had failed to
address his request for equitable tolling, and taking issue with the Board’s weighing of
the evidence bearing on both Ms. Kwan’s ineffectiveness and his diligence in bringing
the motion. But the Board stuck by its decision to deny relief, holding that
Anandakrishnan was not eligible for equitable tolling and declining—for the third time—
to exercise its sua sponte discretion to reopen the removal proceedings.
The case thus came to us when Anandakrishnan petitioned for review from the
denial of reconsideration.
II
Because Anandakrishnan did not petition for review of the Board’s denial of his
third motion to reopen—opting instead only to seek reconsideration—the only question
before us is whether the Board abused its discretion denying that request. See Lopez-
Garcia v. Barr, 969 F.3d 749, 752 (7th Cir. 2020). We will affirm the decision of the Board
unless it “was made without a rational explanation, inexplicably departed from
established policies, or rested on an impermissible basis, such as invidious discrimination
against a race or particular group.” Vyloha v. Barr, 929 F.3d 812, 815 (7th Cir. 2019)
(internal quotation marks omitted).
One notable omission in Anandakrishnan’s brief stands out and indeed anchors
our analysis. Anandakrishnan mounts no attack on the Board’s denial of equitable tolling.
This is noteworthy because it is possible to construe both Anandakrishnan’s third motion
to reopen and his motion for reconsideration as seeking reopening on two, independent
bases: statutory reopening under 8 U.S.C. § 1229a(b)(5)(C)(i) and sua sponte reopening
under 8 C.F.R. § 1003.2(a). Because Anandakrishnan has forfeited any objection to the
Board’s conclusion that he does not qualify for equitable tolling—a showing he had to
make to bring a second, untimely motion to reopen under the INA—he is limited to
arguing that the Board abused its discretion by declining to reconsider its denial of sua
sponte relief. Any uncertainty there might be about the scope of Anandakrishnan’s third
motion to reopen and his motion for reconsideration is therefore irrelevant.

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The challenge for Anandakrishnan is that our jurisdiction to review the Board’s
denial of sua sponte relief is exceedingly narrow. It is well-settled that because “there is
no meaningful standard by which to evaluate the exercise of the Board’s discretion”
under 8 C.F.R. § 1003.2(a), which in any case it is “not require[d] … to exercise,” “the
merits of the Board’s decision to deny a motion to reopen sua sponte are unreviewable.”
Fuller v. Whitaker, 914 F.3d 514, 519 (7th Cir. 2019); see also Anaya-Aguilar v. Holder, 683
F.3d 369, 372 (7th Cir. 2012); Pilch v. Ashcroft, 353 F.3d 585, 586 (7th Cir. 2003). That does
not leave Anandakrishnan without any recourse, for we retain jurisdiction to “recognize
and address constitutional transgressions and other legal errors that the Board may have
committed” en route to exercising its sua sponte discretion. Fuller, 914 F.3d at 519; see also
8 U.S.C. § 1252(a)(2)(D). But that qualification does mean that any argument directly
attacking the merits of the Board’s decision to deny sua sponte relief or objecting to that
decision on purely factual grounds is off limits.
Anandakrishnan’s appellate brief is difficult to parse. So far as we can discern, it
lodges three challenges to the Board’s denial of reconsideration. First, Anandakrishnan
contends that the Board abused its discretion by finding that his case does not involve
“exceptional circumstances” of the kind appropriate for sua sponte relief. Second,
Anandakrishnan contends that the Board did not adequately explain the basis for its
conclusion that his case is not exceptional. Third, Anandakrishnan takes issue with
several factual errors he believes led the Board to deny reconsideration. At oral argument,
Anandakrishnan pressed a fourth argument—that the Board engaged in impermissible
fact finding in violation of 8 C.F.R. § 1003.1(d)(3)(iv)—but he conceded that this argument
was not raised in the briefs. It is therefore waived.
Two of Anandakrishnan’s preserved objections—the first and the third—exceed
the bounds of our jurisdiction. Anandakrishnan’s contention that the Board committed
legal error by concluding that his case did not involve “exceptional circumstances” is a
direct attack on the merits of the Board’s decision to withhold sua sponte relief. He
attempts to circumvent this jurisdictional barrier by conceptualizing the Board’s
conclusion that his case is not “exceptional” as a legal prerequisite to the exercise of
discretion. In his view, the Board can exercise its discretion only after it properly
concludes that a non-citizen’s circumstances are exceptional.
True enough, the Board has reserved sua sponte relief for exceptional cases. Board
precedent is clear on this point. See Matter of J–J–, 21 I. & N. Dec. at 984; Matter of G–D–,
22 I. & N. Dec. at 1133–34. But Anandakrishnan points us to no case in which we or any
other circuit court has understood the Board’s discussion of “exceptional circumstances”
in like cases to establish a legal standard, rather than as simply acknowledging that the

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Board exercises its sua sponte discretion sparingly. To the contrary, we have, in case after
case, described the Board’s sua sponte discretion as standardless and discretionary. Anaya-
Aguilar, 683 F.3d at 373 (“[T]he Board has not established any sort of comprehensive
standard or list of factors in its case law that it considers when determining whether an
extraordinary situation exists in a particular case.”); Fuller, 914 F.3d at 519 (“[T]here is no
law defining what situations will qualify as exceptional.”); Malukas v. Barr, 940 F.3d 968,
970 (7th Cir. 2019) (“[W]e reiterate ... that, because the board has unfettered discretion to
reopen, or not, sua sponte, its decision is not subject to judicial review at all.”).
To hold that we have jurisdiction to decide for the Board which cases present
“exceptional circumstances” and which do not would require us to reject the core
rationale for these decisions. This we decline to do. Because Anandakrishnan’s first
argument is nothing more than a roundabout way of contesting the merits of the Board’s
exercise of sua sponte discretion, it exceeds the bounds of our jurisdiction, and we consider
it no further.
We likewise lack jurisdiction to consider Anandakrishnan’s factual arguments—
the specifics of which we need not discuss in any detail. Although the “wholesale failure
to consider evidence” may amount to a legal error reviewable under 8 U.S.C.
§ 1252(a)(2)(D), see Huang v. Mukasey, 534 F.3d 618, 620 (7th Cir. 2008) (citing Hanan v.
Mukasey, 519 F.3d 760, 764 (8th Cir. 2008)), a run-of-the-mill factual error does not. See
Jezierski v. Mukasey, 543 F.3d 886, 887–88 (7th Cir. 2008); Patel v. Holder, 563 F.3d 565, 569
(7th Cir. 2009). All of Anandakrishnan’s factual objections are of this sort—an alleged
failure to properly construe the record, not a wholesale failure to consider record
evidence. We therefore lack jurisdiction to consider them, seeing as they are relevant, if
at all, only to evaluate the basis for the Board’s denial of sua sponte reopening.
That leaves Anandakrishnan’s argument that the Board failed to adequately
explain why it declined to exercise its sua sponte authority. As Anandakrishnan
recognizes, the Board “does not have to ‘write an exegesis on every contention.’” Kebe v.
Gonzales, 473 F.3d 855, 857 (7th Cir. 2007) (quoting Mansour v. INS, 230 F.3d 902, 908 (7th
Cir. 2000)). An explanation is adequate so long as it “‘announce[s] [the Board’s] decision
in terms sufficient to enable a reviewing court to perceive that it has heard and thought
and not merely reacted.’” Id. (quoting Mansour, 230 F.3d at 908). In our view, the Board’s
decision easily clears this bar. The Board’s decision is detailed and gives several reasons
for its conclusion that Anandakrishnan’s case was not “exceptional,” chief among them
the fact that he received oral notice of the date of his removal hearing from the
immigration judge. Having carefully reviewed its order and the accompanying

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administrative record, we are of the firm mind that the Board gave careful thought to—
and certainly did not reflexively deny—Anandakrishnan’s motion for reconsideration.
For these reasons, Anandakrishnan cannot show that the Board abused its
discretion—at least not in a way that we have jurisdiction to correct. Accordingly,
Anandakrishnan’s petition is DISMISSED in part and DENIED in part.

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