Sang Park v. Attorney General United States , 846 F.3d 645 ( 2017 )

PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
___________
No. 16-1795
___________
SANG GOO PARK,
Petitioner
v.
ATTORNEY GENERAL OF
THE UNITED STATES,
Respondent
____________________________________
On Petition for Review of an Order of the
Board of Immigration Appeals
(Agency No. A097-848-626)
Immigration Judge: Honorable Frederic G. Leeds
____________________________________
Submitted Pursuant to Third Circuit LAR 34.1(a)
November 18, 2016
Before: AMBRO, SHWARTZ, and FUENTES, Circuit
Judges
(Opinion filed: January 17, 2017)
David K. S. Kim, Esq.
Law Office of David K. S. Kim, P.C.
193-08 Northern Boulevard
Flushing, NY 11358
Counsel for Petitioner
Claire Workman, Esq.
United States Department of Justice
Office of Immigration Litigation
P.O. Box 878
Ben Franklin Station
Washington, DC 20044
Counsel for Respondent
_________
OPINION OF THE COURT
_________
FUENTES, Circuit Judge:
Petitioner Sang Goo Park, a citizen of South Korea,
was ordered removed in 2009, in part for submitting
fraudulent documents in support of his visa application. He
now claims that, in the years since the removal order, he has
become eligible for a “§ 212(i)” waiver of inadmissibility.
He would like the Board of Immigration Appeals (“BIA” or
“Board”) to reopen his removal proceedings so that he might
apply for the waiver, but he faces an imposing obstacle.
Because of the passage of time, his only route to reopening
lies through 8 C.F.R. § 1003.2(a), commonly known as the
“sua sponte” reopening provision. Under that regulation, the
2
BIA may reopen a case at any time. The BIA has held,
however, that it will do so only in extraordinary
circumstances. As a result, the BIA’s discretion in this area is
broad—so broad, in fact, that we have no meaningful way to
review it, thereby depriving us of jurisdiction over orders
denying sua sponte reopening.
Park’s petition invokes one of the limited exceptions to
the rule against review. He argues, as he did before the
agency, that the BIA has consistently reopened sua sponte for
aliens like him who have become eligible for relief from
removal after their cases have ended. By ruling consistently
in this way, Park contends, the BIA has established a rule or
“settled course of adjudication” that it is now bound to
follow, or at least from which the BIA may not depart without
explaining itself. Park also points to our two precedential
opinions interpreting this “settled course” exception,
Chehazeh v. Att’y Gen. and Cruz v. Att’y Gen.,1 as weighing
in favor of our ability to review the BIA’s decision.
Park’s petition gives us an opportunity to clarify our
jurisprudence surrounding the “settled course” exception,
which originated over a decade ago but has existed since
without a framework. In part, this requires us to interpret
Chehazeh and Cruz, which Park reads as being broader than
they actually are (a mistake he is not alone in making).
Under the “settled course” framework we establish
below, Park neither shows nor allows us to reasonably infer
that the BIA has constrained its discretion in a way that would
allow our review of its decision denying sua sponte
reopening. His other arguments in favor of exercising
1
666 F.3d 118 (3d Cir. 2012); 452 F.3d 240 (3d Cir. 2006).
3
jurisdiction are unavailing. Thus, we will dismiss his petition
for lack of jurisdiction.
I. Background
a) Entry, Accusations of Fraud, and Immigration
Removal Proceedings
Park entered the United States on a visitor’s visa in
2
1999. Some years later, he applied for an adjustment of
status based on an approved immigrant petition from his
employer. During the adjustment process, authorities
discovered that Park, a cook, had said on his visa application
that he had been employed at an electronics company—a
falsehood. Charged with being inadmissible due to fraud
(which he contested) and for overstaying the visa (which he
conceded), Park insisted that he was unaware of the
information in the application that misstated his employment.
Park did not otherwise apply for relief from removal; at the
time, he was not eligible for a § 212(i) waiver of
inadmissibility because he lacked a qualifying relative.3
In the end, the presiding Immigration Judge sustained
the fraud charge and ordered Park deported to South Korea.
The BIA dismissed his appeal, and we denied his petition for
review.4
2
Park’s immigration case was originally consolidated with
his wife’s and child’s, but as Park is our only petitioner, we
will focus on him alone for simplicity’s sake.
3
See 8 U.S.C. § 1182(i)(1).
4
See Park v. Att’y Gen., 371 F. App’x 343, 345 (3d Cir.
2010) (per curiam).
4
About two and a half years later, Park filed his first
BIA motion requesting sua sponte reopening. Through new
counsel, Park argued, in essence, that apparent
inconsistencies in his testimony about whether he had signed
the visa documents were due to a flawed translation from
Korean into English. The BIA declined to reopen Park’s
case, and we dismissed his second petition for review for lack
of jurisdiction.5
b) Park’s Second, Current Motion to Reopen Sua
Sponte
This brings us to the present. In January 2016, Park
filed a second motion to reopen his removal proceedings sua
sponte, this one premised on his new eligibility for a § 212(i)
waiver of inadmissibility. He asserted that his parents, now
permanent residents of the United States (and, thus, potential
qualifying relatives for the waiver), would suffer great
hardship if he were removed. Park explained that they reside
near him in New Jersey, depend on him financially, and
suffer from mental distress (such as depression and even
suicidal ideation) associated with his immigration situation.
Tying these threads together, he argued in his motion that the
BIA “has generally reopened proceedings sua sponte and
remanded to the IJ, where . . . [an alien] became eligible for
relief from removal subsequent to the final order of removal,
and/or either the DHS does not oppose the motion or other
positive factors” are present, citing a series of unpublished
BIA cases in support.6
5
See Park v. Att’y Gen., 560 F. App’x 154, 155–57 (3d Cir.
2014) (per curiam).
6
Administrative Record (“A.R.”) 22.
5
The BIA denied Park’s motion in a short decision.
After noting that Park had already filed the one motion to
reopen authorized by law and had otherwise filed beyond the
applicable deadline, the BIA briefly addressed sua sponte
reopening: “Based on the totality of circumstances presented,
we do not find . . . an exceptional situation that would warrant
the Board’s exercise of its discretion to reopen sua sponte.”7
c) Park’s Current Petition for Review
In his petition, Park argues primarily that the BIA has
impermissibly departed from a consistent pattern of
administrative decisions rendered in similar cases. Through
this settled course and pattern, he argues, the BIA has
constrained its discretion such that we may exercise
jurisdiction and review it for abuse. To support this route to
our jurisdiction, he relies again on a series of unpublished
BIA cases, about ten in all—although not the same decisions
he relied on before the Board.
Park also raises secondary but related arguments for
how we might properly find jurisdiction. For instance, he
reads our opinions in Chehazeh8 and Cruz9—the two prior
precedential opinions in which we invoked the “settled
course” exception—as granting us jurisdiction over orders
denying sua sponte reopening for lack of exceptional
situations or circumstances. Park asks us to find, once we
have asserted jurisdiction, that the BIA’s decision was an
abuse of its broad discretion, and to “remand to the Board
with instructions to reopen the proceedings” so that his
7
A.R. 3.
8
666 F.3d 118 (3d Cir. 2012).
9
452 F.3d 240 (3d Cir. 2006).
6
eligibility for the § 212(i) waiver can be fully considered.10
II. Legal Background of Sua Sponte Reopening11
We begin with a quick summary of the statutory and
regulatory scheme and then move to a discussion of sua
sponte reopening. Since we have not previously developed a
framework to guide the “settled course” exception, we do so
below.
a) Motions to Reopen in the BIA; Our Jurisdiction in
General
An alien has the right under statute and regulation to
file a single motion to reopen his or her removal proceedings,
subject to certain limitations (and exceptions to those
limitations) that are not relevant here.12 We ordinarily have
jurisdiction to review the BIA’s denial of such a motion,
conducting a “highly deferential” review for abuse of
discretion; the BIA’s decision is not disturbed unless found to
10
Park Br. 29.
11
What follows is primarily about our jurisdiction in the
context of sua sponte reopening. Yet Park ultimately wants a
§ 212(i) waiver of inadmissibility, and we generally lack
jurisdiction to review agency decisions regarding a § 212(i)
waiver. See 8 U.S.C. §§ 1182(i)(2), 1252(a)(2)(B)(i).
Because the agency never addressed the discretionary merits
of Park’s request for a waiver, it is likely that our jurisdiction
here (if otherwise found to exist) would be unaffected. See
Mazariegos v. Lynch, 790 F.3d 280, 285 (1st Cir. 2015).
12
See 8 U.S.C. § 1229a(c)(7); 8 C.F.R. § 1003.2(c); Prestol
Espinal v. Att’y Gen., 653 F.3d 213, 215–17 (3d Cir. 2011).
7
be “arbitrary, irrational, or contrary to law.”13 As always, we
are limited in our review to “the rationale that the agency
provides.”14
b) The BIA May Reopen Sua Sponte in Extraordinary
Circumstances
Section 1003.2(a) of the immigration regulations
contains a catch-all provision not found in the statute: even
when an alien might otherwise be ineligible to reopen his or
her case, the BIA may nevertheless “at any time reopen or
reconsider on its own motion any case in which it has
rendered a decision.” Because the regulation speaks of the
BIA acting “on its own motion,” this catch-all is known as
sua sponte reopening—although since an alien usually has to
ask the BIA to act, and in a written request at that, the label is
technically inapt.15
Section 1003.2(a) does not say what standard the BIA
is to apply in deciding sua sponte requests to reopen. Rather,
it says simply that decisions are “within the discretion of the
Board,” which has the discretion to deny a motion “even if
the party moving has made out a prima facie case for relief.”
In interpreting the scope of its authority under this regulation
and its predecessor, the BIA has clarified that it will exercise
its discretion to reopen “sparingly” and in “exceptional
13
Alzaarir v. Att’y Gen., 639 F.3d 86, 89 (3d Cir. 2011).
14
Konan v. Att’y Gen., 432 F.3d 497, 501 (3d Cir. 2005).
15
See Cordova-Soto v. Holder, 732 F.3d 789, 791 (7th Cir.
2013) (“A request for sua sponte reopening is an oxymoron,
but the odd concept seems to be well entrenched in
immigration law.”).
8
situations” only, and will not use sua sponte reopening as a
“general remedy for any hardships created by enforcement of
the time and number limits in the motions regulations.”16
However, while the BIA “must be persuaded that the . . .
situation is truly exceptional before [it] will intervene,”17 the
presence of an exceptional situation does not compel it to act;
the BIA may still decide against reopening.18
c) Because the BIA’s Discretion is Near Absolute, We
Generally Lack Jurisdiction to Review Its Decisions
Denying Sua Sponte Reopening
Over a decade ago, in Calle-Vujiles v. Ashcroft,19 we
held that orders by the BIA declining to exercise its discretion
to reopen sua sponte are functionally unreviewable, unlike
other orders on immigration motions to reopen. Relying on
the Supreme Court’s decision in Heckler v. Chaney,20 we
explained that because the BIA’s discretion is essentially
unlimited, we lacked a “meaningful standard . . . against
which to judge the [BIA’s] exercise of [its] discretion.”21
Under the teachings of Heckler, this left us unable to exercise
jurisdiction despite the general presumption in favor of
judicial review of agency decisions.22 Other courts have
16
In re G-D-, 22 I. & N. Dec. 1132, 1133–34 (BIA 1999).
17
Id. at 1134.
18
See Cruz, 452 F.3d at 249; Ekimian v. INS, 303 F.3d 1153,
1158 (9th Cir. 2002).
19
320 F.3d 472 (3d Cir. 2003).
20
470 U.S. 821 (1985).
21
Calle-Vujiles, 320 F.3d at 474 (quoting Heckler, 470 U.S.
at 830).
22
Id. at 474–75.
9
reached substantially the same conclusion.23
d) Development of Exceptions to the Rule Against
Review
We have developed two exceptions to our rule against
review, and while Park invokes only one directly, discussion
of both helps to illuminate the kinds of decisions we have and
have not ruled to be within our jurisdiction.
1) The First Exception: We Can Review the
BIA’s Reliance on an Incorrect Legal
Premise
The first exception arises when the BIA relies on an
incorrect legal premise in denying a motion to reopen sua
sponte. In Pllumi v. Att’y Gen., we held that we may exercise
jurisdiction in those cases and remand to the BIA so that it
may exercise its sua sponte authority under the correct legal
framework.24
2) The Second Exception: We Can Review the
BIA’s Decision When the BIA Has
23
See Peralta v. Holder, 567 F.3d 31, 34 (1st Cir. 2009)
(collecting cases); Tamenut v. Mukasey, 521 F.3d 1000, 1004
(8th Cir. 2008) (en banc) (per curiam) (collecting cases). The
Supreme Court has declined to reach the question. See
Kucana v. Holder, 558 U.S. 233, 251 n.18 (2010).
24
642 F.3d 155, 160 (3d Cir. 2011). As the Ninth Circuit
recently observed, “no circuit squarely presented with this
issue has held to the contrary,” although the Eighth has
“expressed some skepticism.” Bonilla v. Lynch, 840 F.3d
575, 589 & n.10 (9th Cir. 2016).
10
Constrained Its Discretion through Rule or
Settled Course of Adjudication
i) The Origin of the Exception
The roots of the second exception are found in Calle-
Vujiles itself. In the midst of discussing our lack of
jurisdiction in that case, we wrote: “It is true that if an agency
announces and follows—by rule or by settled course of
adjudication—a general policy by which its exercise of
discretion will be governed, that exercise may be reviewed
for abuse.”25 In so stating, we were borrowing secondhand
from the Supreme Court’s 1996 decision in INS v. Yang,26 in
which the Court explained—in the context of the BIA’s
denial of a waiver—that unfettered agency discretion could
be narrowed by settled practice to the point where an
irrational departure from that practice might constitute
abuse.27
Although Calle-Vujiles recognized the possibility of an
exception, our observation there was simply an aside. There
was no “settled practice” argued by the parties and, as a
result, we did not say anything more about this possible
exception to our rule against review, such as what might
25
Calle-Vujiles, 320 F.3d at 475 (internal quotation marks
and citation omitted). We note that Calle-Vujiles is generally
cited by other courts for its proscription on jurisdiction, not its
recognition of an exception. See, e.g., Barry v. Mukasey, 524
F.3d 721, 723 (6th Cir. 2008); Ali v. Gonzales, 448 F.3d 515,
518 (2d Cir. 2006).
26
519 U.S. 26 (1996).
27
See id. at 31–32.
11
suffice to invoke it.
ii) We Reaffirm the Settled Course
Exception in Chehazeh and Cruz
Despite its origin in dicta, the “settled course”
exception to the rule against sua sponte review has twice
arisen in precedential opinions since Calle-Vujiles, both times
in complex cases where it was far from the only moving part.
While neither decision sets out a precise framework for how
to evaluate the presence of a “settled course,” the opinions are
nevertheless instructive on what kinds of BIA decisions we
have found to be within our ambit of review. Moreover, both
opinions reaffirm the basic principle recognized in Calle-
Vujiles: we have jurisdiction if the BIA’s discretion is
bounded.28
In the more-recent of the two cases, Chehazeh v. Att’y
Gen., we recognized that while the BIA’s discretion to deny
29
sua sponte reopening was indeed unfettered, its discretion to
grant reopening—which it did in Chehazeh to the detriment
of the alien—was not. “[B]ecause the BIA has announced
28
This principle is a natural corollary to the general
presumption in favor of judicial review of agency action.
See, e.g., Kucana, 558 U.S. at 251–52 (discussing the
presumption); Jahjaga v. Att’y Gen., 512 F.3d 80, 82 (3d Cir.
2008) (same).
29
666 F.3d 118 (3d Cir. 2012). Chehazeh arose not from a
petition for review, but from an Administrative Procedure Act
challenge. See id. at 121. The different posture of Chehazeh
does not appear to be a point of distinction, at least for our
decision today.
12
and followed a general policy that it will exercise its
discretion to reopen only in exceptional situations,” we wrote,
“we may review a decision to reopen to determine whether it
was based upon an exceptional situation.”30
In the earlier of the two cases, Cruz v. Att’y Gen.,31 the
BIA’s order denying reopening failed to mention that the
alien’s criminal conviction, which was the sole ground of
removability, had been vacated. Instead, the BIA summarily
denied reopening as time-barred and found sua sponte action
unwarranted “for any reason.”32 Observing that both our
precedent and the BIA’s own precedent suggested that
petitioner Cruz was no longer removable, we decided in part
that the BIA’s cursory order left the basis for its decision
unclear. Had the BIA in fact considered and rejected Cruz’s
arguments or had it done something entirely different? As we
can review only the rationale the BIA provides for its
decision, this ambiguity created an untenable “jurisdictional
conundrum.”33 Although we did not ultimately decide
whether the BIA actually had established a general policy of
reopening in cases like Cruz’s, we found jurisdiction and
remanded for the BIA to at least “explain logically its
unwillingness to” reopen Cruz’s case.34
30
Id. at 129.
31
452 F.3d 240 (3d Cir. 2006).
32
Id. at 244–45.
33
See id. at 248–50.
34
Id. at 250.
13
iii) Our Nonprecedential Cases
Inconsistently Apply the Settled Course
Exception
While Chehazeh and Cruz are our sole precedential
cases dealing with the settled course exception,35 our
nonprecedential cases have addressed it several times. Those
decisions inconsistently locate the moment where a
petitioner’s allegation of a settled course of conduct suffices
to transform an unreviewable BIA sua sponte decision into a
reviewable one. The majority of them consider the sources
identified by the petitioner before deciding whether the BIA
has constrained its discretion and, thus, whether we have
jurisdiction.36 In others, however, we have suggested that the
allegation of a pattern or settled course is itself sufficient to
confer jurisdiction.37
35
We appear to be the only Court of Appeals to recognize in
a precedential decision a possible “settled course” exception
in the context of sua sponte reopening. But see Tamenut, 521
F.3d at 1005 (citing to Calle-Vujiles and assuming, without
deciding, that “a settled course of adjudication could establish
a meaningful standard by which to measure the agency’s
future exercise of discretion”).
36
See, e.g., Lora-Gonzalez v. Att’y Gen., 632 F. App’x 678,
680 (3d Cir. 2015) (per curiam); Dwumaah v. Att’y Gen., 628
F. App’x 121, 124 (3d Cir. 2015) (per curiam); Zhou v. Att’y
Gen., 429 F. App’x 120, 123 (3d Cir. 2011) (per curiam).
37
See, e.g., Codner v. Att’y Gen., No. 16-1411, 2016 WL
4717941, at *2–3 (3d Cir. Sept. 9, 2016) (per curiam); Sapon-
Caniz v. Att’y Gen., 502 F. App’x 147, 152 (3d Cir. 2012)
(per curiam).
14
e) Creating a Framework For the Settled Course
Exception
We hold today that the approach taken by the majority
of our nonprecedential cases is the correct one to follow, and
informs the proper framework to use in “settled course”
cases. It is our view that in order to invoke the “settled
course” exception to our rule against review of orders
denying sua sponte reopening requests, a petitioner must
establish that the BIA has limited its discretion via a policy,
rule, settled course of adjudication, or by some other method,
such that the BIA’s discretion can be meaningfully reviewed
for abuse. The petitioner’s showing must be persuasive
enough to allow the reasonable inference that the BIA’s
discretion has in fact been limited. Our evaluation of the
authorities marshaled by the petitioner logically precedes,
rather than follows, a finding of jurisdiction to conduct abuse-
of-discretion review—although we can of course refer to the
BIA’s decision from which the petition arises to determine
whether it fits into the pattern alleged by the petitioner. This
framework follows from our reasoning in Calle-Vujiles:
agency discretion that has been limited is reviewable and is
thus within our jurisdiction.38
The key words in the above formulation are
“meaningfully” and “reasonable.” A policy so broad as to
merely redirect the BIA’s discretion, rather than limit it, will
probably be insufficient. The same goes for a “pattern” of
dispositions whose contours are not clearly defined or which
is not tailored to the petitioner’s circumstances.
What happens after the petitioner has made this
38
Cf. Calle-Vujiles, 320 F.3d at 474.
15
showing will depend on the circumstances of the particular
case. We generally act, as we did in Cruz, as a final set of
eyes. We ensure that the BIA has not incorrectly denied
reopening to an alien who would ordinarily be entitled to it
under the regular course of action, which might happen if the
BIA overlooks the core of the alien’s claim. This holds
particularly true when the BIA has not explained the decision
the petitioner seeks to challenge.
The government argues that to the extent BIA
decisions can establish a policy, practice, or settled course of
adjudication, only published, precedential BIA decisions
should be considered. It is true that we assigned diminished
weight to the legal reasoning in and the deference owed to
unpublished BIA decisions.39 But otherwise, on review, we
treat the published and unpublished dispositions of the agency
in the same way. Moreover, the Immigration and Nationality
Act does not distinguish between the two kinds of BIA
orders, and their effects do not meaningfully differ for the
affected aliens.40 There is no apparent administrative-law
principle that removes unpublished, nonprecedential agency
decisions from the reach of review for arbitrariness.
Moreover, both Cruz and Chehazeh suggested that the
BIA’s nonprecedential opinions have value in determining the
agency’s policies and practices. In Cruz, we used the BIA’s
nonprecedential decisions (which had not been relied upon by
the petitioner) to note the possible existence of a broader
39
De Leon-Ochoa v. Att’y Gen., 622 F.3d 341, 350 (3d Cir.
2010).
40
Cf. 8 U.S.C. § 1252(b)(4) (setting out scope and standard of
review).
16
policy that, while not established by those decisions, was
nevertheless being consistently interpreted or followed by
them.41 In Chehazeh we explained the difference between
decisions denying reopening versus decisions granting
reopening: the latter, whether published or unpublished,
marked the boundaries of what the BIA considers to be
“extraordinary” situations or circumstances warranting
reopening.42 And, outside of the context of sua sponte
reopening, at least one other Court of Appeals has considered
the agency’s unpublished dispositions in determining the
breadth of its settled course of adjudication.43
III. Analysis
a) Park’s Petition for Review under the Settled Course
Framework
Having clarified our framework for review of Park’s
settled course claim, we ask whether he has allowed us to
infer that the BIA has, in fact, constrained its discretion such
that we may meaningfully review its decision for abuse. Park
contends that the BIA has a “practice or pattern of reopening
cases sua sponte where, as here, the petitioner becomes
eligible for [] relief from removal for which he was not
eligible in the original removal proceedings.”44
We disagree with his premise. Of the decisions Park
relies upon, only one strikes us as tailored appropriately to his
situation: an order granting sua sponte reopening because the
41
See Cruz, 452 F.3d at 246 n.3.
42
See Chehazeh, 666 F.3d at 128–29.
43
See De Leon v. Holder, 761 F.3d 336, 344 (4th Cir. 2014).
44
Park Br. 24.
17
alien was now eligible for adjustment of status based on her
marriage to a United States citizen.45 But one favorable
exercise of discretion does not a settled course make.
Moreover, our independent investigation does not reveal
obvious consistency by the BIA in this area of its case law.46
In light of the above, Park has failed to show a
meaningful restriction of the BIA’s discretion with regard to
similarly situated aliens. Without a reasonable inference of
such a limitation, we lack jurisdiction over the petition for
review.
b) Chehazeh and Cruz Do Not Grant Jurisdiction over
Orders Denying Reopening for a Lack of
Exceptional Circumstances
In the alternative, Park contends that our decisions in
Cruz and Chehazeh broadened our jurisdiction to encompass
any decision where, as here, the BIA denies sua sponte
reopening because exceptional circumstances/situations are
absent.47 He refers to a passage in Cruz, referenced in
Chehazeh, where we wrote:
45
In re Shulum, A73 549 194, 2003 WL 23270059, at *1
(BIA Oct. 22, 2003).
46
See, e.g., In re Patel, A096 441 533, 2012 WL 1495503, at
*1 (BIA Apr. 3, 2012) (denying sua sponte reopening in
similar situation).
47
As the government points out, Park is not the first
petitioner to premise a jurisdictional argument on this
language. See Gov’t Br. 22–23 (discussing our unpublished,
per curiam opinion in Jabateh v. Att’y Gen., 431 F. App’x 90
(3d Cir. 2011), which rejected a similar argument).
18
We cannot tell from its opinion whether the
BIA concluded that Cruz made out a prima
facie case for sua sponte relief based on his
vacated conviction, but nevertheless exercised
its unreviewable discretion under 8 C.F.R.
§ 1003.2(a) to decline to reopen, or whether it
believed that Cruz had not shown an
“exceptional situation,” and was therefore
ineligible because he failed to establish a prima
facie case for sua sponte relief. In the latter
instance, we would have jurisdiction to review
the BIA’s decision.48
If Park correctly reads Cruz and Chehazeh, those cases would
amount to an almost wholesale inversion of our normal rule
against review, because the BIA’s common refrain in denying
reopening is that the petitioner has failed to show exceptional
circumstances.
Unsurprisingly, we do not think Cruz and Chehazeh
brought about such a sweeping and unannounced change in
our jurisprudence. For one, despite relying on the language
from Cruz quoted above, Chehazeh made plain the distinction
between BIA orders denying sua sponte reopening for lack of
exceptional circumstances (unreviewable) and those granting
them (reviewable).49 For another, our discussion of
exceptional circumstances in Cruz was tethered to a specific
kind of “prima facie” case: a showing that an alien was no
longer removable and thus had demonstrated his prima facie
eligibility for relief from the underlying order of removal, as
48
Cruz, 452 F.3d at 250 (emphasis added); see also
Chehazeh, 666 F.3d at 130 (quoting Cruz).
49
See Chehazeh, 666 F.3d at 129–30.
19
opposed to a showing of potential merit on a renewed or new
application for relief.50 Neither Cruz nor Chehazeh grants us
jurisdiction simply because the BIA invoked a lack of
exceptional circumstances in denying a motion to sua sponte
reopen.51
IV. Conclusion
We hold that the “settled course” exception to our rule
50
See Cruz, 452 F.3d at 249.
51
Park suggests two final routes through which we might find
jurisdiction. They merit brief discussion.
First, Park appears to invoke the Supreme Court’s decision in
Mata v. Lynch, 135 S. Ct. 2150 (2015), as an independent
ground through which we have jurisdiction. He misreads
Mata, which held in part that when the BIA denies a motion
to reopen on both reviewable and non-reviewable grounds,
courts should retain jurisdiction over the former even if the
latter are beyond their reach. See id. at 2155. Since Park
challenged only the denial of sua sponte relief in his opening
brief, this distinction is irrelevant.
Second, while Park cursorily raises a due process claim in the
introductory sections of his brief and then again in his
argument summary, it is presented in the body of the
argument as an abuse-of-discretion claim. To the extent that
a constitutional claim of this sort could independently confer
jurisdiction through 8 U.S.C. § 1252(a)(2)(D)—the
government argues that it cannot, see Gov’t Br. 28 n.4—the
claim here is not colorable. See Pareja v. Att’y Gen., 615
F.3d 180, 186–87 (3d Cir. 2010) (explaining that review is
limited to colorable constitutional and legal claims).
20
against review of BIA orders denying sua sponte reopening
can be invoked by showing that the BIA has meaningfully
limited its discretion so as to allow our review. The
unpublished BIA cases cited by Park do not lead to the
reasonable inference that the BIA has done so here. For these
and other reasons, we lack jurisdiction over Park’s petition
for review. It will be dismissed.
21