NOT RECOMMENDED FOR PUBLICATION File Name: 25a0177n.06
No. 24-3624
UNITED STATES COURT OF APPEALS FOR THE SIXTH CIRCUIT FILED Mar 31, 2025 KELLY L. STEPHENS, Clerk ) MAHESH AMRUTBHAI PATEL, ) Petitioner, ) ON PETITION FOR REVIEW ) FROM THE BOARD OF v. ) IMMIGRATION APPEALS ) PAMELA BONDI, Attorney General, ) OPINION Respondent. ) ) )
Before: SUHRHEINRICH, MOORE, and NALBANDIAN, Circuit Judges.
KAREN NELSON MOORE, Circuit Judge. Mahesh Amrutbhai Patel was ordered
removed from the United States. He asked the Board of Immigration Appeals (“BIA”) to reopen
his immigration case sua sponte. The BIA denied his motion. Because we lack jurisdiction to
review the BIA’s discretionary refusal, we dismiss the petition for review.
Patel, a native of India, entered the United States without inspection in April 1994.
Admin. R. (“AR”) 602 (Order to Show Cause & Notice of Hr’g). The Immigration and
Naturalization Service commenced deportation proceedings the following year. Id. Appearing
pro se, Patel sought asylum and withholding of removal; the immigration judge (“IJ”) denied the
claim because he found that Patel’s allegations lacked credibility. Id. at 448–54 (Aug. 24, 1995,
Oral Decision of the IJ). With the assistance of counsel, Patel appealed to the BIA, which
remanded to afford him adequate due process. Id. at 423 (Aug. 30, 1996, BIA Decision). Patel
failed to appear at a hearing and was ordered removed from the United States. Id. at 382 (Nov. No. 24-3624, Patel v. Bondi
14, 1996, Deportation Order). Patel moved to reopen proceedings, and the IJ granted the motion.
Id. at 372 (Feb. 13, 1997, Reopening Order). This time, Patel sought to adjust his status based on
his marriage to a U.S. citizen. Id. at 205 (Apr. 3, 1997, Hr’g Tr. at 51). But Patel failed to appear
at an immigration hearing, and he was ordered removed. Id. at 368 (Nov. 14, 1997, Deportation
Order).
Eleven years later, Patel moved for sua sponte reopening of his case, which the IJ granted.
See id. at 340 (Dec. 1, 2008, Reopening Order). After a merits hearing, the IJ found Patel’s
testimony not credible and denied his claims of asylum, withholding of removal, and protection
under the U.N. Convention Against Torture. Id. at 127–45 (Mar. 24, 2010, Oral Decision of the
IJ). Patel appealed, but the BIA dismissed, finding no error. Id. at 94–95 (Nov. 4, 2011, BIA
Decision).
Another dozen years passed and Patel asked the BIA to reopen his case sua sponte so that
he could seek an adjustment of status. Id. at 14 (Mot. to Reopen Sua Sponte & Remand at 1).
Patel argued that he would be prima facie eligible for legal status if the case were reopened due
to his son’s military service and his prior marriage to a U.S. citizen. Id. at 17, 19 (Mot. to Reopen
Sua Sponte & Remand at 4–5). He noted that he had lived in the United States for 24 years
without incident. Id. at 17 (Mot. to Reopen Sua Sponte & Remand at 4). And he emphasized his
strong family ties here, including a son who is a U.S. citizen and a member of the U.S. Army,
arguing that extreme hardship would result from separation. Id. at 15, 17 (Mot. to Reopen Sua
Sponte & Remand at 2, 4). He contended that these factors presented “exceptional circumstances”
warranting the BIA’s exercise of discretion. Id. at 16 (Mot. to Reopen Sua Sponte & Remand at
3). The BIA denied the motion because it was untimely and did “not present any exceptional
2 No. 24-3624, Patel v. Bondi
situation that would warrant [its] sua sponte reopening.” Id. at 7 (June 28, 2024, BIA Order).
Patel sought review from this court of the BIA’s denial of the motion to reopen. He argues that
the BIA abused its discretion. Pet’r Br. at 9.
“A motion to reopen is a form of procedural relief that asks the [BIA] to change its
decision in light of newly discovered evidence or a change in circumstances since the hearing.”
Dada v. Mukasey, 554 U.S. 1, 12 (2008) (internal quotation marks omitted); see 8 U.S.C.
§ 1229a(c)(7)(A); 8 C.F.R. § 1003.2(a), (c). Subject to certain exceptions, a motion to reopen
must be filed within 90 days after the final administrative decision is rendered. 8 U.S.C.
§ 1229a(c)(7)(C); 8 C.F.R. § 1003.2(c)(2). Notwithstanding these time limitations, the BIA
retains discretion to reopen removal proceedings sua sponte, Lopez v. Garland, 990 F.3d 1000,
1003 (6th Cir. 2021); see 8 C.F.R. § 1003.2(a), and does so in “exceptional situations,” In re J-J-,
21 I. & N. Dec. 976, 984 (BIA 1997).
We generally have jurisdiction to review the BIA’s denials of motions to reopen and do
so under the abuse-of-discretion standard. Thompson v. Lynch, 788 F.3d 638, 642 (6th Cir. 2015).
However, we “lack jurisdiction to review a BIA decision declining to exercise its discretionary
authority to sua sponte reopen a removal order.” Lopez, 990 F.3d at 1003 (quoting Cuevas-Nuno
v. Barr, 969 F.3d 331, 335 (6th Cir. 2020)). A decision to deny sua sponte reopening “‘is
committed to the unfettered discretion of the BIA’ and therefore is not subject to judicial review.”
Rais v. Holder, 768 F.3d 453, 460 (6th Cir. 2014) (quoting Barry v. Mukasey, 524 F.3d 721, 723
(6th Cir. 2008)).
Patel does not challenge the BIA’s conclusion that his motion to reopen was untimely and
that no exception to the timeliness rule applies. Pet’r Br. at 8. Instead, he argues that the BIA
3 No. 24-3624, Patel v. Bondi
abused its discretion by failing to reopen his case sua sponte. Id. He contends that his case is
exceptional, and that we should remand so that the BIA can consider whether his deportation
“would be unjust.” Id. We cannot. As explained above, we lack jurisdiction to review the BIA’s
decision to deny sua sponte reopening.
Many of our sibling circuits have recognized limited jurisdiction to review denials of
motions to reopen sua sponte when the BIA’s decision is premised on a legal error. See, e.g.,
Thompson v. Barr, 959 F.3d 476, 483 (1st Cir. 2020) (“join[ing] the Second, Third, Fifth, Seventh,
Eighth, and Ninth Circuits in holding that [it had] limited jurisdiction to review constitutional
claims or errors of law that arise in motions to reopen sua sponte” (footnote omitted)). Our court
has not yet addressed this question. See Hermiz v. Garland, 848 F. App’x 184, 187 (6th Cir.
2021). And this case does not present the moment to do so, because Patel does not argue that the
BIA made any legal error, such as applying the wrong rule or misapprehending the scope of its
discretion. He challenges only the BIA’s conclusion that the facts presented were not exceptional
under the BIA’s precedents.
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NOT RECOMMENDED FOR PUBLICATION File Name: 25a0177n.06
No. 24-3624
UNITED STATES COURT OF APPEALS FOR THE SIXTH CIRCUIT FILED Mar 31, 2025 KELLY L. STEPHENS, Clerk ) MAHESH AMRUTBHAI PATEL, ) Petitioner, ) ON PETITION FOR REVIEW ) FROM THE BOARD OF v. ) IMMIGRATION APPEALS ) PAMELA BONDI, Attorney General, ) OPINION Respondent. ) ) )
Before: SUHRHEINRICH, MOORE, and NALBANDIAN, Circuit Judges.
KAREN NELSON MOORE, Circuit Judge. Mahesh Amrutbhai Patel was ordered
removed from the United States. He asked the Board of Immigration Appeals (“BIA”) to reopen
his immigration case sua sponte. The BIA denied his motion. Because we lack jurisdiction to
review the BIA’s discretionary refusal, we dismiss the petition for review.
Patel, a native of India, entered the United States without inspection in April 1994.
Admin. R. (“AR”) 602 (Order to Show Cause & Notice of Hr’g). The Immigration and
Naturalization Service commenced deportation proceedings the following year. Id. Appearing
pro se, Patel sought asylum and withholding of removal; the immigration judge (“IJ”) denied the
claim because he found that Patel’s allegations lacked credibility. Id. at 448–54 (Aug. 24, 1995,
Oral Decision of the IJ). With the assistance of counsel, Patel appealed to the BIA, which
remanded to afford him adequate due process. Id. at 423 (Aug. 30, 1996, BIA Decision). Patel
failed to appear at a hearing and was ordered removed from the United States. Id. at 382 (Nov. No. 24-3624, Patel v. Bondi
14, 1996, Deportation Order). Patel moved to reopen proceedings, and the IJ granted the motion.
Id. at 372 (Feb. 13, 1997, Reopening Order). This time, Patel sought to adjust his status based on
his marriage to a U.S. citizen. Id. at 205 (Apr. 3, 1997, Hr’g Tr. at 51). But Patel failed to appear
at an immigration hearing, and he was ordered removed. Id. at 368 (Nov. 14, 1997, Deportation
Order).
Eleven years later, Patel moved for sua sponte reopening of his case, which the IJ granted.
See id. at 340 (Dec. 1, 2008, Reopening Order). After a merits hearing, the IJ found Patel’s
testimony not credible and denied his claims of asylum, withholding of removal, and protection
under the U.N. Convention Against Torture. Id. at 127–45 (Mar. 24, 2010, Oral Decision of the
IJ). Patel appealed, but the BIA dismissed, finding no error. Id. at 94–95 (Nov. 4, 2011, BIA
Decision).
Another dozen years passed and Patel asked the BIA to reopen his case sua sponte so that
he could seek an adjustment of status. Id. at 14 (Mot. to Reopen Sua Sponte & Remand at 1).
Patel argued that he would be prima facie eligible for legal status if the case were reopened due
to his son’s military service and his prior marriage to a U.S. citizen. Id. at 17, 19 (Mot. to Reopen
Sua Sponte & Remand at 4–5). He noted that he had lived in the United States for 24 years
without incident. Id. at 17 (Mot. to Reopen Sua Sponte & Remand at 4). And he emphasized his
strong family ties here, including a son who is a U.S. citizen and a member of the U.S. Army,
arguing that extreme hardship would result from separation. Id. at 15, 17 (Mot. to Reopen Sua
Sponte & Remand at 2, 4). He contended that these factors presented “exceptional circumstances”
warranting the BIA’s exercise of discretion. Id. at 16 (Mot. to Reopen Sua Sponte & Remand at
3). The BIA denied the motion because it was untimely and did “not present any exceptional
2 No. 24-3624, Patel v. Bondi
situation that would warrant [its] sua sponte reopening.” Id. at 7 (June 28, 2024, BIA Order).
Patel sought review from this court of the BIA’s denial of the motion to reopen. He argues that
the BIA abused its discretion. Pet’r Br. at 9.
“A motion to reopen is a form of procedural relief that asks the [BIA] to change its
decision in light of newly discovered evidence or a change in circumstances since the hearing.”
Dada v. Mukasey, 554 U.S. 1, 12 (2008) (internal quotation marks omitted); see 8 U.S.C.
§ 1229a(c)(7)(A); 8 C.F.R. § 1003.2(a), (c). Subject to certain exceptions, a motion to reopen
must be filed within 90 days after the final administrative decision is rendered. 8 U.S.C.
§ 1229a(c)(7)(C); 8 C.F.R. § 1003.2(c)(2). Notwithstanding these time limitations, the BIA
retains discretion to reopen removal proceedings sua sponte, Lopez v. Garland, 990 F.3d 1000,
1003 (6th Cir. 2021); see 8 C.F.R. § 1003.2(a), and does so in “exceptional situations,” In re J-J-,
21 I. & N. Dec. 976, 984 (BIA 1997).
We generally have jurisdiction to review the BIA’s denials of motions to reopen and do
so under the abuse-of-discretion standard. Thompson v. Lynch, 788 F.3d 638, 642 (6th Cir. 2015).
However, we “lack jurisdiction to review a BIA decision declining to exercise its discretionary
authority to sua sponte reopen a removal order.” Lopez, 990 F.3d at 1003 (quoting Cuevas-Nuno
v. Barr, 969 F.3d 331, 335 (6th Cir. 2020)). A decision to deny sua sponte reopening “‘is
committed to the unfettered discretion of the BIA’ and therefore is not subject to judicial review.”
Rais v. Holder, 768 F.3d 453, 460 (6th Cir. 2014) (quoting Barry v. Mukasey, 524 F.3d 721, 723
(6th Cir. 2008)).
Patel does not challenge the BIA’s conclusion that his motion to reopen was untimely and
that no exception to the timeliness rule applies. Pet’r Br. at 8. Instead, he argues that the BIA
3 No. 24-3624, Patel v. Bondi
abused its discretion by failing to reopen his case sua sponte. Id. He contends that his case is
exceptional, and that we should remand so that the BIA can consider whether his deportation
“would be unjust.” Id. We cannot. As explained above, we lack jurisdiction to review the BIA’s
decision to deny sua sponte reopening.
Many of our sibling circuits have recognized limited jurisdiction to review denials of
motions to reopen sua sponte when the BIA’s decision is premised on a legal error. See, e.g.,
Thompson v. Barr, 959 F.3d 476, 483 (1st Cir. 2020) (“join[ing] the Second, Third, Fifth, Seventh,
Eighth, and Ninth Circuits in holding that [it had] limited jurisdiction to review constitutional
claims or errors of law that arise in motions to reopen sua sponte” (footnote omitted)). Our court
has not yet addressed this question. See Hermiz v. Garland, 848 F. App’x 184, 187 (6th Cir.
2021). And this case does not present the moment to do so, because Patel does not argue that the
BIA made any legal error, such as applying the wrong rule or misapprehending the scope of its
discretion. He challenges only the BIA’s conclusion that the facts presented were not exceptional
under the BIA’s precedents. Even courts that do consider legal errors arising in the BIA’s review
of sua sponte reopening motions “will not second-guess the BIA’s application of a correct legal
premise to facts found in the original record.” Zhou v. Attorney General, No. 21-1453, 2022 WL
212311, at *4 (3d Cir. Jan. 25, 2022); see Egemba v. Garland, No. 22-6518, 2024 WL 1433716,
at *1 (2d Cir. Apr. 3, 2024).
In denying Patel’s motion, the BIA relied on its precedents providing that “exceptional
situations” generally do not include “equities acquired after a final order of removal.” AR 7 (June
28, 2024, BIA Order) (first quoting In re J-J-, 21 I. & N. Dec. at 984; then citing In re H-Y-Z, 28
I. & N. Dec. 156, 161 (BIA 2020)). We have previously dismissed a petition for review when the
4 No. 24-3624, Patel v. Bondi
BIA denied sua sponte reopening based on application of these same precedents. See Wu v.
Garland, No. 22-3530, 2023 WL 5021547, at *4 (6th Cir. Aug. 7, 2023). Patel draws our attention
to In re Viteruo-Acuna, 2007 WL 129752 (BIA 2007), in which the BIA granted sua sponte
reopening based on an exceptional situation. In that case, which predated In re H-Y-Z, the
individual had a seven-year-old U.S. citizen child and a path to legal residence as a victim of
domestic violence. In re Viteruo-Acuna, 2007 WL 129752, at *2. Even if In re Viteruo-Acuna
were analogous insofar as the equities arose after the final removal order, we could not say that
the BIA committed legal error by making an exception to the general rule and concluding that a
more extraordinary situation was presented there.
None of the other cases cited by Patel affect our analysis either. Patel cites Ping Zheng v.
Holder, 701 F.3d 237 (7th Cir. 2012), in which the Seventh Circuit reviewed the BIA’s refusal to
reopen proceedings when a petitioner sought reopening of his asylum claim due to changed
country conditions. Id. at 240. But that case is clearly distinguishable because changed conditions
for an asylum claim is a statutory exception to the timeliness rule. See 8 U.S.C.
§ 1229a(c)(7)(C)(ii); 8 C.F.R. § 1003.2(c)(3)(ii). Here, Patel did not renew his application for
asylum, and he concedes that no exception to the time limits applies to him. Pet’r Br. at 8. Patel
also cites Immigration and Naturalization Service v. Abudu, in which the Supreme Court
reviewed the BIA’s refusal to reopen a removal case so that the petitioner could seek asylum. 485
U.S. 94, 97 (1988). That case is inapposite, too, because it was decided before Congress imposed
filing deadlines on motions to reopen and, in any event, concerned an asylum petition. See Dada,
554 U.S. at 13–14.
For the foregoing reasons, the petition for review is DISMISSED.