NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
___________
No. 09-4394
___________
ANSU SEKOU FOMBA JABATEH,
Petitioner
v.
ATTORNEY GENERAL OF THE UNITED STATES
____________________________________
On Petition for Review of an Order of the
Board of Immigration Appeals
(Agency No. A096-266-092)
Immigration Judge: Honorable Annie S. Garcy
____________________________________
Submitted Pursuant to Third Circuit LAR 34.1(a)
November 24, 2010
Before: MCKEE, Chief Judge, SMITH and GARTH, Circuit Judges
(Opinion filed: June 21, 2011)
___________
OPINION
___________
PER CURIAM
Ansu Sekou Fomba Jabateh petitions for review of the Board of Immigration
Appeals‟ (“BIA”) denial of his motion to reopen. We entered an order on March 15,
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2011, staying proceedings in this Court and remanding to the BIA for further
consideration in light of subsequent developments. The Government has filed a motion
for reconsideration of that order. We will grant the motion, vacate our order of March
15, 2011, and dismiss the petition for review.
I.
Jabateh is a citizen of Liberia who entered the United States without inspection
and concedes that he is removable on that basis. See 8 U.S.C. § 1227(a)(1)(A). He
applied for asylum, withholding of removal and relief under the Convention Against
Torture on the grounds that he feared mistreatment because of his ethnicity and political
opinion. An Immigration Judge denied his application, and the BIA affirmed by order
issued December 17, 2004. Jabateh did not petition for review.
Some five years later, he filed a motion to reopen his proceeding on the basis of
his marriage to a United States citizen, who had filed an I-130 visa petition on his behalf.
Jabateh argued that approval of the petition would make him eligible to adjust his status
to lawful permanent resident, but the petition had not yet been adjudicated. The BIA
denied Jabateh‟s motion by order issued October 23, 2009. The BIA determined that the
motion was untimely, which Jabateh does not dispute. See 8 U.S.C. § 1229a(c)(7)(C)(i);
8 C.F.R. § 1003.2(c)(2). The BIA also rejected Jabateh‟s request that it exercise its
authority to reopen sua sponte, concluding that he has not “shown that an „exceptional
situation‟ exists that would warrant the Board‟s exercise of its discretion to reopen these
proceedings sua sponte.” Jabateh petitions for review.
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II.
We generally review the BIA‟s denial of a motion to reopen for abuse of
discretion. See Cruz v. Att‟y Gen., 452 F.3d 240, 247 (3d Cir. 2006). When the BIA
declines to exercise its discretion to reopen sua sponte, however, we generally lack
jurisdiction to review its ruling “[b]ecause there is no standard governing the agency‟s
exercise of discretion[.]” Id. at 249 (citing Calle-Vujiles v. Ashcroft, 320 F.3d 472, 475
(3d Cir. 2003)). Review is nevertheless permitted if the BIA adopts a “„general policy by
which its exercise of discretion will be governed.‟” Calle-Vujiles, 320 F.3d at 475
(citation omitted). The BIA has held that its authority to reopen sua sponte is reserved
for “exceptional situations,” but that holding does not constitute such a policy because
the BIA has neither held that it is required to reopen in “exceptional situations” nor
defined “exceptional situations” in a way permitting review. See id.; see also Pllumi v.
Att‟y Gen., — F.3d —, No. 09-4454, 2011 WL 1278741, at *3 n.7 (3d Cir. Apr. 6, 2011)
(“[N]o case has been found nor any pointed out by the parties that defines what is
considered an „exceptional situation.‟”).1
The Government argues that we lack jurisdiction to review the BIA‟s denial of
reopening sua sponte in this case. Jabateh acknowledges the general jurisdictional
impediment, but argues that it does not apply here because the BIA denied reopening, not
1
We also have jurisdiction to determine whether the BIA‟s denial of reopening sua
sponte rests “on an incorrect legal premise,” Pllumi, 2011 WL 1278741, at *3, but the
BIA did not base its decision on any conclusion of law and Jabateh does not argue
otherwise.
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in the exercise of its discretion, but because it determined that he is not prima facie
eligible for relief. We disagree.
Jabateh bases his argument on our decision in Cruz. In that case, the petitioner
had been ordered removed on the basis of his conviction of a crime involving moral
turpitude. That conviction was later vacated, and the petitioner sought reopening on that
basis. The BIA denied the motion, ruling in relevant part that “„we do not find that sua
sponte reopening is warranted for any reason.‟” Cruz, 452 F.3d at 245 (quoting BIA
decision). We expressed concern with this ruling, because the BIA generally views the
vacation of a removable conviction as an “exceptional situation” warranting reopening
sua sponte. See id. at 246 & n.3, 250. The BIA‟s cursory ruling, however, left us unable
to determine whether it believed that the petitioner was still removable notwithstanding
the vacation of his conviction (and thus that he did not present an “exceptional situation”
because he was not prima facie eligible for relief), or whether it agreed that the petitioner
was eligible for relief but nevertheless declined to reopen sua sponte in the exercise of its
discretion. See id. at 250. We explained that the former conclusion would permit us to
review the BIA‟s determination of petitioner‟s ineligibility for relief, but that the latter
conclusion would leave us without jurisdiction to review the BIA‟s exercise of its
discretion. See id. Thus, we concluded that the BIA‟s decision left us unable to
determine our jurisdiction, and we remanded for further explanation. See id.
Jabateh argues that Cruz permits review any time the BIA decides that a motion to
reopen does not present an “exceptional situation.” As we have explained, however,
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Cruz concerned a specific kind of “exceptional situation”—i.e., one in which a petitioner
contended that the vacation of a conviction rendered him no longer removable, and thus
one in which the petitioner potentially was prima facie eligible for relief from the
underlying order of removal. We held that the order in Cruz was potentially reviewable
because, although we did not decide the issue, the BIA may have adopted a policy of
reopening in that specific situation. See id.
Jabateh relies on no such potential policy here. Jabateh argues that the approval of
an I-130 visa petition makes the beneficiary eligible to adjust status to lawful permanent
resident. He further relies on several unpublished BIA decisions for the proposition that
reopening sua sponte is warranted when an alien is eligible to adjust status on the basis of
an I-130 petition that already has been approved. We need not decide whether the BIA
has adopted such a policy, however, because the I-130 petition on which Jabateh relies
was unadjudicated at the time the BIA rendered its decision, and it thus would not place
Jabateh within that policy even if the BIA has adopted it. Cf. In re Velarde-Pacheco, 23
I. & N. Dec. 253, 255-56 (BIA 2002) (holding that timely motion to reopen may be
granted even though an I-130 visa petition remains unadjudicated). Because Jabateh
relies on no general policy potentially permitting review in this situation, we lack
jurisdiction to review the BIA‟s discretionary denial of his motion to reopen sua sponte.
Finally, we note that the Department of Homeland Security now has approved the
I-130 petition. On that basis, and on Jabateh‟s motion, we stayed proceedings in this
Court and remanded to the BIA for further consideration. The Government (which had
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not made its position known by responding to Jabateh‟s motion to remand) has filed a
motion for reconsideration, in which it argues that Jabateh instead should be required to
raise the approval of the I-130 petition in another motion to reopen with the BIA. We
agree. The approval of Jabateh‟s I-130 petition was not before the BIA when it issued its
decision and is not part of the record before us on review. See 8 U.S.C. § 1252(b)(4)(A).
Thus, if Jabateh wishes the BIA to consider the effect of that development, he should file
another motion to reopen with the BIA on that basis. See Ni v. Gonzales, 494 F.3d 260,
269-71 (2d Cir. 2007). We express no opinion on whether reopening is warranted or on
whether the approval of the petition makes him eligible for relief, but we emphasize that
our ruling in no way controls those questions. If the BIA again denies reopening, Jabateh
may then seek review by filing a separate and otherwise-proper petition for review with
this Court. See Stone v. INS, 514 U.S. 386, 394-95 (1995); Thomas v. Att‟y Gen., 625
F.3d 134, 139 (3d Cir. 2010).
Accordingly, the Government‟s motion for reconsideration is granted, our order of
March 15, 2011, is vacated, and the petition for review is dismissed.
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