Sang Goo Park v. Attorney Gen. of the United States

Citation846 F.3d 645
Decision Date17 January 2017
Docket NumberNo. 16–1795,16–1795
Parties SANG GOO PARK, Petitioner v. ATTORNEY GENERAL of the United States, Respondent
CourtUnited States Courts of Appeals. United States Court of Appeals (3rd Circuit)

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

Before: AMBRO, SHWARTZ, and FUENTES, Circuit Judges

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 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 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 1999.2 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

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

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 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 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 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]...

To continue reading

Request your trial
55 cases
  • Darby v. Attorney Gen. of the U.S.
    • United States
    • United States Courts of Appeals. United States Court of Appeals (3rd Circuit)
    • June 17, 2021
    ...review the BIA's decision declining to reopen Darby's proceedings sua sponte, as discussed infra Section IV. See Sang Goo Park v. Att'y Gen. , 846 F.3d 645, 651 (3d Cir. 2017). We have jurisdiction over the remaining issues in Darby's petition under 8 U.S.C. § 1252(a). See Cruz v. Att'y Gen......
  • Lona v. Barr
    • United States
    • United States Courts of Appeals. United States Court of Appeals (9th Circuit)
    • May 15, 2020
    ...other method, such that the BIA’s discretion can be meaningfully reviewed for abuse.’ " Id. at 1117 (quoting Sang Goo Park v. Attorney Gen. , 846 F.3d 645, 653 (3d Cir. 2017) ).The petitioner,1 Elizabeth Lona, seeks to take advantage of this language, asking us to exercise our limited juris......
  • Thompson v. Barr
    • United States
    • United States Courts of Appeals. United States Court of Appeals (1st Circuit)
    • May 21, 2020
    ...authority in a given state, even if that authority is conferred by statute, transcends these two cases. Cf. Sang Goo Park v. Att'y Gen. of U.S., 846 F.3d 645, 654 (3d Cir. 2017) ("[O]ne favorable exercise of discretion does not a settled course make.").Thompson argues, and we agree, that th......
  • Adeyanju v. Garland
    • United States
    • United States Courts of Appeals. United States Court of Appeals (1st Circuit)
    • February 24, 2022
    ...at the BIA from which to diverge, and thus no successful claim of legal error on this basis here. See Sang Goo Park v. Att'y Gen. of the U.S., 846 F.3d 645, 654 (3d Cir. 2017) (finding no settled course where there is no "obvious consistency by the BIA"); compare In re: Hong, 2008 Immig. Rp......
  • Request a trial to view additional results

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT