USCA11 Case: 21-14355 Document: 33-1 Date Filed: 05/31/2023 Page: 1 of 4 [DO NOT PUBLISH] In the United States Court of Appeals For the Eleventh Circuit ____________________ No. 21-14355 Non-Argument Calendar ____________________ BAOYU ZHANG, Petitioner, versus U.S. ATTORNEY GENERAL, Respondent. ____________________ Petition for Review of a Decision of the Board of Immigration Appeals Agency No. A201-561-567 ____________________ USCA11 Case: 21-14355 Document: 33-1 Date Filed: 05/31/2023 Page: 2 of 4 2 Opinion of the Court 21-14355 Before NEWSOM, BRANCH, and GRANT, Circuit Judges. PER CURIAM: Baoyu Zhang, proceeding pro se, seeks review of a decision of the Board of Immigration Appeals (“BIA”) affirming and adopting the Immigration Judge’s (“IJ”) decision denying his motion to reconsider and reopen his removal proceeding. In his petition for review, Zhang argues that the IJ erred in finding that he was not entitled to equitable tolling of the deadline to file a motion to reopen and by declining to reopen his case sua sponte. The government in turn moves for summary disposition, arguing that we lack subject-matter jurisdiction over Zhang’s petition because he failed to exhaust his administrative remedies. After review, we grant the government’s motion in part and deny it in part. Summary disposition is appropriate where “the position of one of the parties is clearly right as a matter of law so that there can be no substantial question as to the outcome of the case, or where, as is more frequently the case, the appeal is frivolous.” Groendyke Transp., Inc. v. Davis, 406 F.2d 1158, 1162 (5th Cir. 1969). 1 As an initial matter, the government is correct that we lack jurisdiction to review the IJ’s refusal to exercise his sua sponte 1 See Bonner v. City of Prichard, 661 F.2d 1206, 1207 (11th Cir. 1981) (en banc) (holding that all decisions from the Fifth Circuit Court of Appeals issued prior to October 1, 1981, are binding precedent in the Eleventh Circuit). USCA11 Case: 21-14355 Document: 33-1 Date Filed: 05/31/2023 Page: 3 of 4 21-14355 Opinion of the Court 3 authority to reopen Zhang’s removal proceedings. See Lenis v. U.S. Att’y Gen., 525 F.3d 1291, 1293 (11th Cir. 2008) (explaining that neither the regulation granting the agency discretion to reopen proceedings sua sponte, 8 C.F.R. § 1003.2(a), nor the statute from which that regulation derives, 8 U.S.C. § 1103(g)(2), provide any “meaningful standard against which to judge the agency’s exercise of discretion” (quotation omitted)); see also Bing Quan Lin v. U.S. Att’y Gen., 881 F.3d 860, 871 (11th Cir. 2018) (“Generally we cannot review decisions of the BIA that are committed to its discretion. Thus, we have held on several occasions that we lack jurisdiction to review a decision of the BIA not to exercise its power to reopen a case sua sponte.”). Accordingly, summary disposition is appropriate as to this issue. Groendyke, 406 F.2d at 1162. On the other hand, summary disposition is not appropriate as to Zhang’s challenge to the IJ’s equitable tolling determination. Section 1252(d)(1) of the Immigration Nationality Act …
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