Chen v. Garland

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.