Chen v. Garland ( 2022 )

19-4162
Chen v. Garland
In the
United States Court of Appeals
FOR THE SECOND CIRCUIT
AUGUST TERM 2021
No. 19-4162
LI CHEN,
Petitioner,
v.
MERRICK B. GARLAND, UNITED STATES ATTORNEY GENERAL,
Respondent.
On Petition for Review of an Order
of the Board of Immigration Appeals
ARGUED: MARCH 18, 2022
DECIDED: AUGUST 5, 2022
Before: JACOBS, POOLER, and MENASHI, Circuit Judges.
Li Chen, a citizen of China, petitions for this court’s review of
the BIA’s denial of his motion to reopen his removal proceedings.
According to Chen, the BIA erred in finding his motion to be time-
barred under 8 U.S.C. § 1229a and further erred in refusing to exercise
its authority to reopen his case sua sponte. However, Chen’s motion
was filed years after his order of removal became final, and he has not
identified any changed country conditions that could justify the
delay. Furthermore, we lack jurisdiction to review the BIA’s decision
not to reopen a case sua sponte. We therefore dismiss in part and deny
in part Chen’s petition for review.
Judge Pooler concurs in a separate opinion.
STUART ALTMAN, Law Office of Stuart Altman, New
York, NY, for Petitioner.
JENNY C. LEE, Trial Attorney, Office of Immigration
Litigation (Jeffrey B. Clark, Acting Assistant Attorney
General, Civil Division, Matthew B. George, Senior
Litigation Counsel, Office of Immigration Litigation, on
the brief), United States Department of Justice,
Washington, DC, for Respondent.
MENASHI, Circuit Judge:
In 2014, an immigration judge (“IJ”) entered an order of
removal for Li Chen, a citizen of China who arrived in the United
States without inspection. Two years later, Chen, having never left,
obtained derivative asylee status through his wife. He filed a motion
to reopen his case in 2018, seeking to terminate the removal
proceedings. The same IJ denied his motion as untimely under
8 U.S.C. § 1229a(c)(7)(C) and declined to exercise the authority to
reopen Chen’s case sua sponte. The Board of Immigration Appeals
(“BIA”) affirmed without a written opinion, and Chen petitioned our
court to review the BIA’s order.
2
This court has repeatedly held that we lack jurisdiction to
review the BIA’s refusal to exercise its authority to reopen a case sua
sponte. See, e.g., Cyrus v. Keisler, 505 F.3d 197, 202 (2d Cir. 2007). And
Chen’s motion is untimely under § 1229a(c)(7)(C)(i). The petition is
therefore dismissed in part and denied in part.
BACKGROUND
I
Under the Immigration and Nationality Act, an order of
removal is “the order of the special inquiry officer, or other such
administrative officer to whom the Attorney General has delegated
the responsibility for determining whether an alien is deportable,
concluding that the alien is deportable or ordering deportation.”
8 U.S.C. § 1101(a)(47)(A). That order becomes “final” upon the earlier
of “a determination by the Board of Immigration Appeals affirming
such order” or “the expiration of the period in which the alien is
permitted to seek review of such order by the Board of Immigration
Appeals.” Id. § 1101(a)(47)(B).
A longstanding avenue for challenging final orders of removal
is the motion to reopen, by which an alien “asks that the proceedings
be reopened for new evidence and a new decision, usually after an
evidentiary hearing.” Ke Zhen Zhao v. DOJ, 265 F.3d 83, 90 (2d Cir.
2001); see also Kucana v. Holder, 558 U.S. 233, 242 (2010) (“Federal-court
review of administrative decisions denying motions to reopen
removal proceedings dates back to at least 1916.”). At one time, “the
authority for such motions derived solely from regulations
promulgated by the Attorney General.” Luna v. Holder, 637 F.3d 85, 95
(2d Cir. 2011). But Congress codified the motion to reopen by enacting
the Illegal Immigration Reform and Immigration Responsibility Act
3
of 1996 (“IIRIRA”), Pub. L. No. 104-208, 110 Stat. 3009, which
“transform[ed] the motion to reopen from a regulatory procedure to
a statutory form of relief available to the alien.” Dada v. Mukasey, 554
U.S. 1, 14 (2008).
Under the IIRIRA—now codified at 8 U.S.C. § 1229a—an alien
“may file one motion to reopen proceedings,” which “shall be filed
within 90 days of the date of entry of a final administrative order of
removal.” 8 U.S.C. § 1229a(c)(7). The statute also provides a limited
exception to the 90-day deadline. Under 8 U.S.C. § 1229a(c)(7)(C)(ii),
“[t]here is no time limit on the filing of a motion to reopen” if three
conditions are met. First, “the basis of the motion” must be to apply
for asylum or statutory withholding of removal. Id.
§ 1229a(c)(7)(C)(ii). Second, the motion must be “based on changed
country conditions arising in the country of nationality or the country
to which removal has been ordered.” Id. Third, it must be that the
evidence of changed country conditions “is material and was not
available and would not have been discovered or presented at the
previous proceeding.” Id.
Apart from § 1229a, the BIA also has the authority to reopen a
case sua sponte. See Zhang v. Holder, 617 F.3d 650, 657-58 (2d Cir. 2010).
“Sua sponte reopening was created by agency regulations; no statute
establishes or limits an IJ’s or the BIA’s authority to reopen a case on
their own motion.” Rubalcaba v. Garland, 998 F.3d 1031, 1037 (9th Cir.
2021). The regulation governing sua sponte reopening, 8 C.F.R.
§ 1003.2, “derives from a statute that grants general authority over
immigration and nationalization matters to the Attorney General, and
sets no standard for the Attorney General’s decision-making in this
context.” Lenis v. U.S. Att’y Gen., 525 F.3d 1291, 1293 (11th Cir. 2008)
4
(referring to 8 U.S.C. § 1103(g)(2)). The regulation reflects this
discretion. At the time of the proceedings in this case, 8 C.F.R.
§ 1003.2(a) provided that “[t]he Board may at any time reopen or
reconsider on its own motion any case in which it has rendered a
decision.”
On December 16, 2020, the Executive Office of Immigration
Review promulgated a new rule, limiting the instances in which sua
sponte reopening may be employed and making those new limits
“effective for all cases, regardless of posture, on the effective date.”
Appellate Procedures and Decisional Finality in Immigration Proceedings;
Administrative Closure, 85 Fed. Reg. 81,588, 81,588, 81,654 (Dec. 16,
2020) (codified at 8 C.F.R. § 1003.2). Thus, 8 C.F.R. § 1003.2(a) now
provides that the BIA “may at any time reopen” a case “solely in order
to correct a ministerial mistake or typographical error in that decision
or to reissue the decision to correct a defect in service.” It also
provides that, “[i]n all other cases, the Board may only reopen or
reconsider any case in which it has rendered a decision solely
pursuant to a motion filed by one or both parties.” 8 C.F.R. § 1003.2(a)
(2021). The final rule’s effective date was January 15, 2021. 85 Fed.
Reg. at 81,588.
II
Over a decade ago, Li Chen arrived in the United States
through Miami, Florida, without inspection. In November 2009, he
applied for asylum, withholding of removal, and relief under the
Convention Against Torture. In his application, Chen claimed that he
“was persecuted by the Chinese government because [he] practiced
Falun Gong in China,” was “arrested, detained, interrogated, and
tortured by the Chinese police,” and was “afraid of being persecuted
5
by the Chinese government again.” Cert. Admin. R. 559. In January
2010, the Department of Homeland Security initiated removal
proceedings against Chen as an “alien present in the United States
without being admitted or paroled, or who [has] arrive[d] in the
United States at any time or place other than as designated by the
Attorney General.” 8 U.S.C. § 1182(a)(6)(A)(i).
In December 2011, an IJ sustained the charge of removability
and found that Chen failed to establish his eligibility for the relief he
sought. Specifically, the IJ found that Chen did not demonstrate by
clear and convincing evidence that he had filed his asylum
application within a year of arriving in the United States and that
Chen was not credible based on inconsistencies between his
testimony at the hearing and his application. Chen appealed to the
BIA, and in July 2013 the BIA remanded to the IJ for further
proceedings. The BIA agreed that Chen failed to demonstrate
eligibility for asylum, but it held that the IJ committed clear error in
finding that Chen was not credible.
On remand, in March 2014, the IJ denied Chen’s application.
Chen never appealed this decision, and therefore there is no hearing
transcript. 1 In the reopening proceedings at issue in this case, the IJ
summarized the remand hearing and decision. According to the IJ,
Chen admitted to false testimony in his hearing on remand.
Ultimately, the IJ concluded that Chen, “by presenting new
documents and testimony after the remand, had undermined the
1 See EXEC. OFF. FOR IMMIGR. REV., BOARD OF IMMIGRATION APPEALS
PRACTICE MANUAL 51 (2021) (“The Board transcribes proceedings, where
appropriate, after receiving a properly filed appeal from the decision of an
Immigration Judge.”).
6
Board’s prior conclusion that he should be considered credible.” Cert.
Admin. R. 69. Accordingly, the IJ ordered Chen removed to China.
At some point during his time in the United States, Chen
married Yan Lin Huang, also an alien. On January 5, 2015, Huang was
granted asylum, and days later she filed a Form I-730 Refugee Asylee
Relative Petition. On May 3, 2016, that motion was granted. Years
after Chen’s application was denied, he had become a derivative
asylee. See 8 U.S.C. § 1158(b)(3)(A) (“A spouse … of an alien who is
granted asylum under [§ 1158(b)] may, if not otherwise eligible for
asylum under this section, be granted the same status as the alien if
accompanying … such alien.”).
On June 6, 2016, Chen moved the Immigration Court “for an
order to reopen and terminate his removal proceedings on the ground
that [he] was granted asylee status on May 3, 2016.” Cert. Admin. R.
75. In his affidavit, Chen gave his reasons for wanting his removal
proceedings terminated. According to Chen, “if I meet the police or
immigration officers I still might be taken by them because I was
ordered removed.” Id. at 80. Additionally, Chen feared that he
“would have trouble” were he to “go back to China to visit [his]
parents and relatives and re-enter the United States.” Id.
The next month, the IJ—the same one who had presided over
Chen’s initial asylum application—denied the motion. First, the IJ
determined that, because the order of removal was issued two years
prior to the motion to reopen, Chen’s motion fell outside the usual 90-
day period for filing motions to reopen. For that reason, Chen needed
to “establish[] some exception to the filing deadline,” id. at 69, and he
did not. Second, the IJ stated that his “authority to reopen the case sua
sponte as a matter of discretion” was “not helpful to respondent.” Id.
7
According to the IJ, such relief “should be denied as a matter of
discretion” because “[t]here is no good basis shown to facilitate his
visits to the country where he claimed to fear grievous persecution.”
Id. at 71. Third, the IJ separately concluded that Chen’s motion should
be denied because “it is very unlikely that the removal order would
now cause any inconvenience for” Chen given that his removal order
“is not public.” Id. at 70.
Chen did not appeal that decision. 2 Instead, in April 2018, he
filed another motion to reopen. This time, Chen expressly asked the
IJ to exercise his authority to reopen the case sua sponte. According to
Chen, his new derivative asylee status was “a fundamental change
that warrants the use of the sua sponte authority to reopen and then
terminate the case.” Cert. Admin. R. 41. Chen also reiterated why he
wanted to terminate the case: he claimed to “continue[] to live in fear”
that “[h]e might still be detained by immigration authorities,” and he
asserted that “he would be unable to enjoy the security of his asylee
status should he seek to leave the United States to revisit his parents
and then return to the United States after such a visit due to an
outstanding removal order.” Id.
The passing of two years did not change the IJ’s mind. The IJ
again noted that Chen’s motion was “clearly not timely under the
normal rule” and that Chen “has failed to allege or prove any
exception to the time and number limits set by the regulations.” Id. at
31. As to Chen’s request for sua sponte reopening, the IJ noted that he
“denied the first motion to reopen partly as a matter of discretion, due
2 According to Chen, he “missed the appeal deadline” because the IJ’s
decision denying his first motion to reopen “was never delivered.” Cert.
Admin. R. 9.
8
to the prior false testimony” and “is completely unwilling to reopen
and terminate the case as a matter of discretion, especially as [Chen]
has failed to show any significant hardship to the wife through whom
he obtained his derivative asylum status.” Id. The IJ denied Chen’s
motion on May 3, 2018.
For the first time in six years, Chen appealed an IJ decision to
the BIA. He made the same arguments as he did before the IJ. And he
received the same result. On November 29, 2019, the BIA “affirm[ed],
without opinion, the result of the decision below.” Id. at 3. Twelve
days later, Chen petitioned for this court’s review.
DISCUSSION
“Where, as here, the BIA affirms the result below without
opinion, we review the IJ’s decision directly as the final agency
determination.” Twum v. INS, 411 F.3d 54, 58 (2d Cir. 2005). We
review the denial of a motion to reopen for abuse of discretion. Kaur
v. BIA, 413 F.3d 232, 233 (2d Cir. 2005). At the same time, “[w]e do not
have jurisdiction to review the BIA’s entirely discretionary refusal to
reopen a case sua sponte.” Centurion v. Sessions, 860 F.3d 69, 74 (2d Cir.
2017) (internal quotation marks omitted). 3
3 In Mata v. Lynch, the Supreme Court held that our jurisdiction to review
“final order[s] of removal” under 8 U.S.C. § 1252(a)(1) “encompasses
review of decisions refusing to reopen or reconsider such orders” pursuant
to 8 U.S.C. § 1229a(c)(7). 576 U.S. 143, 147 (2015) (alteration in original).
According to the Supreme Court, that result is “expressly contemplate[d]”
by § 1252(b)(6), id., which provides that “any review sought of a motion to
reopen or reconsider [a removal order] shall be consolidated with the
review of the order,” 8 U.S.C. § 1252(b)(6). This holding of Mata might be
affected by the Supreme Court’s subsequent decision that only “rulings that
affect the validity of the final order of removal merge into the final order of
9
Chen makes two principal arguments on appeal. First, Chen
contends that the BIA “erred in ruling [his] case was time barred.”
Petitioner’s Br. 9. Second, he argues that the BIA erred in refusing to
exercise its authority to reopen his case sua sponte. Id. at 13. We
address these arguments in turn.
I
As always, “[b]ecause we have an obligation to assure
ourselves of jurisdiction under Article III, we begin there.” Hassoun v.
Searls, 968 F.3d 190, 195 (2d Cir. 2020) (alteration omitted) (quoting
Trump v. Hawaii, 138 S. Ct. 2392, 2415-16 (2018)). At oral argument,
Chen represented to this court for the first time that U.S. Citizenship
and Immigration Services (“USCIS”) adjusted his status to that of a
legal permanent resident in 2018. Oral Argument Audio Recording at
3:25. According to supplemental briefing provided by the
government, “[i]f this information is accurate, the Court lacks
jurisdiction over this petition for review because Petitioner is not
subject to a final order of removal.” Respondent’s Supplemental Br. 2.
We need not decide whether Chen has adjusted his status to
that of a legal permanent resident. 4 We disagree with the government
removal for purposes of judicial review.” Nasrallah v. Barr, 140 S. Ct. 1683,
1691 (2020). We remain bound by Mata. See OneSimpleLoan v. U.S. Sec’y of
Educ., 496 F.3d 197, 208 (2d Cir. 2007) (“[W]e are not at liberty to depart
from binding Supreme Court precedent unless and until the Court
reinterprets that precedent.”) (internal quotation marks and alterations
omitted).
4 It is uncertain whether Chen has actually obtained legal permanent
resident status. Neither he nor the government has provided any record
evidence to indicate that Chen has, for the past four years, been a legal
permanent resident. Additionally, regulations provide that “[i]n the case of
10
that an adjustment of status would nullify Chen’s final order of
removal. The INA provides that, “[u]nless otherwise specified in this
chapter, a proceeding under [§ 1229a] shall be the sole and exclusive
procedure for determining whether an alien may be admitted to the
United States” and that “[a]n immigration judge shall conduct
proceedings for deciding the inadmissibility or deportability of an
alien.” 8 U.S.C. § 1229a(a). Outside of that administrative process, “a
petition for review filed with an appropriate court of appeals in
accordance with this section shall be the sole and exclusive means for
judicial review of an order of removal.” Id. § 1252(a)(5).
A final order of removal was entered for Chen in 2014. Chen
never administratively appealed that order. Since then, the IJ has
recognized the continued existence of the removal order. When
denying Chen’s first motion to reopen, the IJ noted that “it is very
unlikely that the removal order would now cause any inconvenience
for respondent.” Cert. Admin. R. 63. And the current petition is the
first time Chen has sought this court’s review. Thus, Chen’s final
order of removal could not have been expunged. If Chen is a legal
any alien who has been placed in deportation proceedings or in removal
proceedings (other than as an arriving alien), the immigration judge
hearing the proceeding has exclusive jurisdiction to adjudicate any
application for adjustment of status the alien may file.” 8 C.F.R.
§ 1245.2(a)(1)(i) (emphasis added). In other words, “[d]epending on the
circumstances, jurisdiction to consider an adjustment of status application
lies either with an immigration judge and the BIA or with the USCIS, but
never simultaneously with both.” Singh v. USCIS, 878 F.3d 441, 446 (2d Cir.
2017). Thus, even if USCIS purported to adjust Chen’s status, it is unclear
whether such an action could have any effect because the IJ presiding over
Chen’s removal proceeding had exclusive jurisdiction to adjudicate any
application for adjustment of status.
11
permanent resident, the government will not enforce the final order
of removal as long as he retains that status. But that does not mean
the order does not exist or that reopening Chen’s removal
proceedings will be without effect. We therefore may address Chen’s
claims.
II
Chen’s first argument is that the BIA “erred in ruling [his] case
was time barred.” Petitioner’s Br. 9. Chen argues that the grant of
derivative asylee status is “new evidence” and that the usual 90-day
time bar on motions to reopen does not apply to him. Id. at 10. For
that reason, Chen claims, the IJ erroneously denied his motion to
reopen under 8 U.S.C. § 1229a(c)(7).
We disagree. To avoid the 90-day time bar, a late motion to
reopen must be “based on changed country conditions arising in the
country of nationality or the country to which removal has been
ordered.” 8 U.S.C. § 1229a(c)(7)(C)(ii). In Wang v. BIA, this court
observed that, to show changed country conditions, “[a] self-induced
change in personal circumstances cannot suffice.” 437 F.3d 270, 274
(2d Cir. 2006). In that case, the petitioner was denied asylum and
granted voluntary departure, but he never left the United States. Id.
at 272. He filed a motion to reopen four and a half years later, claiming
changed country conditions by reason of his marriage and the birth
of two of his children in the interim. Id. at 272-73. We held that “the
birth of petitioner’s two children in the United States is evidence of
his changed personal circumstances, as opposed to changed
conditions in [his country].” Id. at 273. We observed that this was a
situation in which “a petitioner is seeking to reopen his … case due to
circumstances entirely of his own making after being ordered to leave
12
the United States” and that “it would be ironic, indeed, if petitioners
… who have remained in the United States illegally following an
order of deportation[] were permitted to have a second and third bite
at the apple simply because they managed to marry and have children
while evading authorities.” Id. at 274.
Chen’s obtaining derivative asylee status through his wife is
not a “changed country condition[].” 8 U.S.C. § 1229a(c)(7)(C)(ii)
(emphasis added). That he is now a derivative asylee is not a changed
circumstance “in China; rather he claim[s] that his personal
circumstances in the United States ha[ve] changed.” Li Yong Zheng v.
DOJ, 416 F.3d 129, 130 (2d Cir. 2005). Chen’s claim is no different than
the claims this court has consistently rejected as “not fit[ting] under
the exception set forth” in § 1229a(c)(7)(C)(ii). Id. at 130-31 (quoting
Guan v. BIA, 345 F.3d 47, 49 (2d Cir. 2005)). In the years since being
ordered removed, Chen married and his wife obtained asylee status.
That may have afforded him asylee status as well, but it does not
entitle him to another “bite at the apple” in removal proceedings long
since completed. Wang, 437 F.3d at 274.
III
Chen’s second argument is that the IJ’s refusal to reopen his
case sua sponte is an error requiring remand. In Chen’s view, the IJ
should have exercised his authority to reopen sua sponte based on
Chen’s derivative asylee status. He also objects to how the IJ
considered the earlier 2014 finding on remand that Chen was not
credible.
13
It is well settled—in every circuit to address the issue 5—that
“[w]e do not have jurisdiction to review the BIA’s entirely
discretionary refusal to reopen a case sua sponte.” Centurion, 860 F.3d
at 74 (internal quotation marks omitted). In Ali v. Gonzales, this court
held that “a decision of the BIA whether to reopen a case sua sponte
under 8 C.F.R. § 1003.2(a) is entirely discretionary and therefore
beyond our review.” 448 F.3d 515, 518 (2d Cir. 2006). For that reason,
“we lack[ed] jurisdiction to review the BIA’s decision not to reopen
[the petitioner’s] immigration proceedings sua sponte.” Id.That conclusion followed from our precedent and the language
of the regulation. Under the Administrative Procedure Act (“APA”),
“agency action is not subject to judicial review ‘to the extent that’ such
action ‘is committed to agency discretion by law.’” Lincoln v. Vigil, 508
U.S. 182, 190-91 (1993) (quoting 5 U.S.C. § 701(a)(2)). We have held
that “[t]his limitation on the APA’s waiver of immunity means that
there is no jurisdiction if the statute or regulation said to govern the
challenged agency action ‘is drawn so that a court would have no
meaningful standard against which to judge the agency’s exercise of
discretion.’” Lunney v. United States, 319 F.3d 550, 558 (2d Cir. 2003)
(quoting Heckler v. Chaney, 470 U.S. 821, 830 (1985)). Our holding in
5 The D.C. Circuit is the only court to have said nothing on the topic. Every
other circuit has held—as we have—that the denial of a motion to reopen a
removal proceeding sua sponte is unreviewable. See Lopez-Dubon v. Holder,
609 F.3d 642, 647 (5th Cir. 2010); Mosere v. Mukasey, 552 F.3d 397, 401 (4th
Cir. 2009); Lenis, 525 F.3d at 1294; Tamenut v. Mukasey, 521 F.3d 1000, 1005
(8th Cir. 2008) (en banc); Harchenko v. INS, 379 F.3d 405, 410-11 (6th Cir.
2004); ; Pilch v. Ashcroft, 353 F.3d 585, 586 (7th Cir. 2003); Belay-Gebru v. INS,
327 F.3d 998, 1001 (10th Cir. 2003); Calle-Vujiles v. Ashcroft, 320 F.3d 472, 475
(3d Cir. 2003); Ekimian v. INS, 303 F.3d 1153, 1159 (9th Cir. 2002); Prado v.
Reno, 198 F.3d 286, 292 (1st Cir. 1999).
14
Ali merely recognized that 8 C.F.R. § 1003.2—which, at the time,
provided that “[t]he Board 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) (2004) (emphasis added)—was such a regulation, see Vela-
Estrada v. Lynch, 817 F.3d 69, 71-72 (2d Cir. 2016) (“[W]e lack
jurisdiction to review the BIA’s decision not to reopen removal
proceedings sua sponte, another action committed to BIA discretion by
regulation.”). 6
We lack jurisdiction to consider Chen’s challenge to the IJ’s
refusal to reopen his case sua sponte. Express authorization to reopen
cases sua sponte is found only in regulations, and those regulations
6 It may be more precise to say that § 701(a)(2), which provides that the
APA does not apply when “agency action is committed to agency discretion
by law,” concerns justiciability rather than jurisdiction. The Supreme Court
has made clear that “the APA does not afford an implied grant of subject-
matter jurisdiction” and that jurisdiction to review agency action is
provided instead by 28 U.S.C. § 1331. Califano v. Sanders, 430 U.S. 99, 105-07
(1977); see also Builders Bank v. FDIC, 846 F.3d 272, 275 (7th Cir. 2017)
(“Section 701(a)(2) is no more a limit on subject-matter jurisdiction than are
doctrines of absolute and qualified immunity, statutes of limitations, and
many other rules that prevent courts from deciding whether the defendant
acted properly.”). Based on this reasoning, the Eighth Circuit has held that
the denial of a motion to reopen sua sponte is nonjusticiable rather than
beyond our subject-matter jurisdiction. See Ochoa v. Holder, 604 F.3d 546,
549-50 (8th Cir. 2010); see also Chehazeh v. Att’y Gen., 666 F.3d 118, 125 n.11
(3d Cir. 2012) (noting that the Third Circuit’s holding that courts lack
“jurisdiction” to review a denial of a motion to reopen sua sponte may have
been “too loose a use of that term”). We are bound by this court’s precedent
to apply § 701(a)(2) as a jurisdictional bar. See Vela-Estrada, 817 F.3d at 71-
72. But we would be obliged to dismiss Chen’s challenge whether
§ 701(a)(2) places review of a sua sponte reopening decision beyond our
jurisdiction or renders that decision nonjusticiable.
15
have only ever said that the BIA “may at any time reopen” a case.
8 C.F.R. § 1003.2(a). There is “no meaningful standard against which
to judge the agency’s exercise of discretion,” Vela-Estrada, 817 F.3d at
71 (quoting Heckler, 470 U.S. at 830); we therefore lack jurisdiction to
review it. 7
At oral argument, Chen argued that we may review the IJ’s
decision denying sua sponte reopening under Mahmood v. Holder, 570
F.3d 466 (2d Cir. 2009). Oral Argument Audio Recording at 8:00. In
that case, we reaffirmed that the agency’s refusal to “exercise its
7 Moreover, it is unclear that the BIA on remand would even have the
authority to grant Chen his requested relief. The governing regulation
permits sua sponte reopening only “to correct a ministerial mistake or
typographical error” or “to reissue the decision to correct a defect in
service,” 8 C.F.R. § 1003.2(a) (2022), and the agency final rule made clear
that those provisions “are effective for all cases, regardless of posture, on
the effective date” of January 15, 2021. 85 Fed. Reg. at 81,588; see also id. at
81,646-47 (“As the withdrawal of a delegation of authority by the Attorney
General, the provisions of the rule related to the restrictions on sua sponte
reopening authority are effective for all cases, regardless of posture, on the
effective date.”). The government in supplemental briefing has informed us
that this rule has been preliminarily enjoined by the U.S. District Court for
the Northern District of California. See Centro Legal de la Raza v. EOIR, 524
F. Supp. 3d 919 (N.D. Cal. 2021); see also Oluwajana v. Garland, 33 F.4th 411,
415 n.* (7th Cir. 2022) (noting that the new rule is “preliminarily enjoined”);
Berdiev v. Garland, 13 F.4th 1125, 1138 n.6 (10th Cir. 2021) (same). But Centro
Legal does not bind this court. An agency subject to review in the Second
Circuit cannot point to a decision from the Northern District of California
to explain why it failed to follow its regulations. Regardless, the current
regulation also includes the language that the Board “may at any time
reopen” a case. 8 C.F.R. § 1003.2(a) (2022) (emphasis added). Thus, there is
no meaningful standard against which to judge a denial of sua sponte
reopening even under the new regulation, and we still lack jurisdiction to
review such a denial.
16
discretionary sua sponte authority” is a “decision we cannot review.”
Mahmood, 570 F.3d at 471. But in view of an intervening Supreme
Court decision that may have allowed a claim for relief that the
agency might otherwise have considered futile, we remanded to the
agency for another discretionary sua sponte ruling that, Mahmood
emphasizes, would be “unreviewable by us.” Id. We thus created an
exception to the bar on our jurisdiction “where the Agency may have
declined to exercise its sua sponte authority because it misperceived
the legal background and thought, incorrectly, that a reopening
would necessarily fail.” Id. at 469.8
We are of course bound by Mahmood, but that case does not give
us jurisdiction to consider Chen’s challenge to the IJ’s denial of sua
sponte reopening. The IJ held that the motion to reopen “should be
denied as a matter of discretion” because Chen “ha[d] failed to show
any significant hardship to the wife through whom he obtained his
derivative asylee status” and “[t]here is no good basis shown to
facilitate his visits to” China, “where he claimed to fear grievous
persecution.” Cert. Admin. R. 37, 64. There is no indication that the IJ
8 Other courts disagree that there is such an exception. Compare Thompson
v. Barr, 959 F.3d 476, 483 (1st Cir. 2020) (listing cases that follow the
Mahmood approach), with Butka v. U.S. Att’y Gen., 827 F.3d 1278, 1285 (11th
Cir. 2016) (rejecting the Mahmood approach). The Eighth Circuit, in
“reserv[ing] judgment on whether [it] would accept the approach of …
Mahmood,” noted that “the exception to judicial review for agency action
committed to agency discretion is typically characterized as categorical”
and that “the Supreme Court elsewhere has rejected a similar ‘theory of
partial reviewability’ because the ‘discretionary character of the
administrative action involved’ excluded a judicial remedy altogether.’”
Barajas-Salinas v. Holder, 760 F.3d 905, 908 n.* (8th Cir. 2014) (quoting
Schilling v. Rogers, 363 U.S. 666, 675-76 (1960)).
17
“misperceived the legal background” and thought that reopening
“would necessarily fail.” Mahmood, 570 F.3d at 469. The IJ did not even
rely on a legal determination. We therefore lack jurisdiction to review
the denial despite Mahmood.
CONCLUSION
Of the two challenges Chen raises in his petition for review of
the denial of his motion to reopen, one is outside this court’s
jurisdiction, and neither can succeed. The petition for review is
therefore DISMISSED in part and DENIED in part.
18
1 POOLER, Circuit Judge, concurring:
2 I concur in the judgment and join the majority opinion, except for footnotes
3 4, 7, and 8. Today’s ruling is narrow: We hold only that the BIA did not abuse its
4 discretion in denying Chen’s motion to reopen as untimely, and that we otherwise
5 lack jurisdiction to review the “entirely discretionary” decision not to reopen
6 proceedings sua sponte. See Ali v. Gonzales, 448 F.3d 515, 518 (2d Cir. 2006). Our
7 ruling does not, and should not be read to, cast doubt on Chen’s present legal
8 status in this country. Nor do I understand the majority opinion to undermine the
9 continuing vitality of Mahmood v. Holder, 570 F.3d 466 (2d Cir. 2009). That case’s
10 holding—that in some circumstances we may remand “where the Agency may
11 have declined to exercise its sua sponte authority because it misperceived the legal
12 background,” id. at 469—remains good law, even if it is unavailing for Chen here.