NOT PRECEDENTIAL UNITED STATES COURT OF APPEALS FOR THE THIRD CIRCUIT ____________ No. 21-1286 ____________ XI JIN LIN, Petitioner v. ATTORNEY GENERAL UNITED STATES OF AMERICA ____________ On Petition for Review from an Order of the Board of Immigration Appeals (Board No. A077-122-613) ____________ Submitted Pursuant to Third Circuit LAR 34.1(a) December 10, 2021 Before: SHWARTZ, PORTER, FISHER, Circuit Judges. (Filed: January 10, 2022) ____________ OPINION* ____________ FISHER, Circuit Judge. Xi Jin Lin petitions for review of the decision of the Board of Immigration Appeals (BIA), which denied her motion to reopen her removal proceedings sua sponte. * This disposition is not an opinion of the full Court and pursuant to I.O.P. 5.7 does not constitute binding precedent. Because we do not have jurisdiction, we will dismiss the petition. Generally, an individual may file only one motion to reopen and must do so within 90 days of the entry of the order of removal.1 Outside of these constraints, however, a regulation applicable to Lin’s motion to reopen allowed the BIA to “at any time reopen or reconsider on its own motion any case in which it has rendered a decision.”2 Because of the regulatory language regarding “the BIA acting ‘on its own motion,’ this . . . is known as sua sponte reopening—although . . . an alien usually has to ask the BIA to act.”3 Under the regulations in effect when the BIA denied reopening in this case, the BIA’s discretion with regard to sua sponte reopening was “essentially unlimited.”4 It could deny such a motion even if the movant “made out a prima facie case for relief.”5 The BIA granted sua sponte reopening based on these regulations “‘sparingly’ and in ‘exceptional situations’ only.”6 Although courts generally may review the actions of administrative agencies, “review is not available in those rare circumstances where . . . a court would have no 1 8 U.S.C. § 1229a(c)(7). 2 8 C.F.R. § 1003.2(a) (eff. until Jan. 14, 2021). This regulation was superseded by a more circumscribed grant of reopening authority. See 85 Fed. Reg. 81588, 81591 (Dec. 16, 2020). 3 Park v. Att’y Gen., 846 F.3d 645, 650 (3d Cir. 2017). 4 Id. at 651. 5 8 C.F.R. § 1003.2(a). 6 Park, 846 F.3d at 650 (quoting In re G–D–, 22 I. & N. Dec. 1132, 1133-34 (BIA 1999)). 2 meaningful standard against which to judge the agency’s exercise of discretion.”7 The denial of a motion to reopen sua sponte is just such a situation—we normally lack jurisdiction because these orders are “functionally unreviewable.”8 There are, however, two exceptions. We have jurisdiction where “the BIA relies on an incorrect legal premise” or “has limited its [own] discretion via a policy, rule, [or] settled course of adjudication.”9 Lin argues that these exceptions are met. We disagree. Lin contends that the BIA “erred as a matter of law by providing no rational explanation . . . for why [her] motion failed to show an exceptional situation” warranting sua sponte reopening.10 She does not …
Original document
Source: All recent Immigration Decisions In All the U.S. Courts of Appeals