ABREU NUNEZ v. ATTORNEY GENERAL OF UNITED STATES (2019)

OPINION *

The Board of Immigration Appeals has unfettered discretion not to reopen proceedings sua sponte. We normally lack jurisdiction to review such denials. But there are two exceptions, only one of which matters here: we would have jurisdiction if the Board were to implement a rule, policy, or settled course of action that meaningfully limited its discretion. But it has never done so. So we will dismiss the petition for review.

In 2008, the Board ordered Fatima Abreu-Nunez to leave the United States voluntarily or be removed. But she did not leave, nor was she removed. Years later, her daughter, a U.S. citizen, successfully filed an immigration petition on her mother’s behalf. So Abreu-Nunez asked the Board to reopen her case sua sponte and to adjust her status, arguing that she is now eligible for lawful permanent residence. The Board denied her motion, reasoning that “becoming potentially eligible for adjustment [of status] is common,” not an exceptional circumstance that justifies reopening. AR 3. Now Abreu-Nunez petitions for review of that denial.

The Board has discretion to reopen removal proceedings sua sponte. 8 C.F.R. § 1003.2(a). When the Board decides not to do so, we lack jurisdiction to review those decisions, subject to two exceptions. Sang Goo Park v. Att’y Gen., 846 F.3d 645, 651-52 (3d Cir. 2017). One of those is when the Board “has limited its discretion via a policy, rule, settled course of adjudication, or by some other method” that gives us a meaningful basis to review the Board’s decision. Id. at 653. That exception exists in theory but not in practice, at least not yet; we have yet to find a meaningful basis to review a denial of a motion to reopen sua sponte.

Abreu-Nunez advances two reasons why she qualifies for this exception, but both fail. First, she argues that the Board’s exceptional-circumstance standard gives us a meaningful basis for review. But in Sang Goo Park, we held that denials for lack of exceptional circumstances are unreviewable. Id. at 655. Second, she argues that the Board has a settled course of reopening cases sua sponte to allow for adjustment of status. Yet in Sang Goo Park, we also observed that the Board has no settled course of doing so. Id. at 654. Since the Board has not limited its discretion, we lack jurisdiction to review its failure to reopen here. So we will dismiss the petition for review.

BIBAS, Circuit Judge.