PS3-178 NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
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Nos. 13-4118, 13-4411, & 13-4759
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DOUGLAS THOMAS,
Petitioner
v.
ATTORNEY GENERAL OF THE
UNITED STATES OF AMERICA,
Respondent
____________________________________
On Petition for Review of an Order of the
Board of Immigration Appeals
(Agency No. A026-582-649)
Immigration Judge: Honorable Henry S. Dogin
____________________________________
Submitted Pursuant to Third Circuit LAR 34.1(a)
September 2, 2014
Before: JORDAN, COWEN and BARRY, Circuit Judges
(Opinion: September 3, 2014)
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OPINION
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PER CURIAM
Douglas Thomas, a native and citizen of Haiti, petitions for review of the Board of
Immigration Appeals’ (“BIA”) order denying his motion to reopen removal proceedings
sua sponte. For the following reasons, we will grant the Government’s motion to dismiss
for lack of jurisdiction.
Thomas entered the United States on a nonimmigrant visa in 1984. In 1988,
Thomas was granted status as a lawful permanent resident on a conditional basis
following his marriage to a U.S. citizen. Thomas’s conditional status was terminated
after a failure to appear for a scheduled interview.
In 1991, Thomas pleaded guilty in the United States District Court for the
Northern District of West Virginia to conspiracy to possess with intent to distribute
cocaine. After his release from prison in August 1994, Thomas was served with an order
to show cause charging him with removability. Thomas conceded removability, but
applied for relief under the Convention Against Torture (“CAT”), waiver of removal, and
removal of his conditional permanent resident status.
In 2001, an immigration judge (“IJ”) granted Thomas’s CAT application and his
application for adjustment of status to lawful permanent resident. The Government
appealed. The BIA sustained the appeal, vacated the IJ’s order, and ordered Thomas
removed to Haiti. We denied Thomas’s subsequent petition for review. See Thomas v.
Att’y Gen., 210 F. App’x 195, 197 (3d Cir. 2006) (not precedential). Thomas then filed a
motion to reopen based on changed country conditions in Haiti. The BIA denied that
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motion and we denied Thomas’s subsequent petition for review. See Thomas v. Att’y
Gen., 308 F. App’x 587, 589 (3d Cir. 2009) (not precedential).
In September 2013, Thomas filed a second motion to reopen, requesting the sua
sponte reopening of his proceedings based on the pendency of an “S” visa application,
see INA § 101(a)(15)(S), 8 U.S.C. § 1101(a)(15)(S). The BIA determined that Thomas’s
motion to reopen was untimely and numerically barred under 8 C.F.R. § 1003.2(c)(2),
and concluded that Thomas’s pending visa application was not an “exceptional situation”
that warranted sua sponte reopening. Thomas filed three petitions for review.1 The
Government moved to dismiss the petitions for review for lack of jurisdiction.
Under INA § 242(a)(1), 8 U.S.C. § 1252(a)(1), we have jurisdiction to review final
orders of removal. We ordinarily review the denial of a motion to reopen for abuse of
discretion. See Pllumi v. Att’y Gen., 642 F.3d 155, 158 (3d Cir. 2011). As the
1
Thomas filed his first petition for review on October 16, 2013, before the BIA issued its
order denying his motion to reopen. However, the petition for review ripened once the
BIA entered a final order because the Government conceded that it was not prejudiced by
the premature filing and we had not yet taken action on the merits of the petition. See
Khan v. Att’y Gen., 691 F.3d 488, 494 (3d Cir. 2012). Thomas filed the second petition
in this Court on November 12, 2013. See Thomas v. Att’y Gen., No. 13-4411. On
November 18, 2013, Thomas filed a third petition in the United States Court of Appeals
for the Ninth Circuit, which transferred the petition to us. See Thomas v. Att’y Gen., No.
13-4759. The petitions for review were consolidated for all purposes. To the extent, if
any, that Thomas’s third petition for review challenges the BIA’s October 4, 2013 order,
which granted a stay of removal while the BIA considered his second motion to reopen,
we dismiss it. See INA § 242(a)(1), 28 U.S.C. § 1252(a)(1). To the extent that that
petition challenged the BIA’s October 23, 2013 order, we will consider it with the
proceedings initiated at Nos. 13-4118 and 13-4411.
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Government contends, however, we lack jurisdiction to review the arguments that
Thomas raises in this case.
The BIA may, at any time, exercise its discretion to reopen removal proceedings
sua sponte. 8 C.F.R. § 1003.2(a). Sua sponte reopening is “an extraordinary remedy
reserved for truly exceptional situations.” Matter of G-D-, 22 I. & N. Dec. 1132, 1133-34
(BIA 1999). Because the regulations governing sua sponte reopening “offers no standard
governing the agency’s exercise of discretion,” we generally lack jurisdiction to review
the BIA’s denial of a motion to reopen sua sponte. Calle-Vujiles v. Ashcroft, 320 F.3d
472, 475 (3d Cir. 2003).
However, we retain jurisdiction to review questions of law or constitutional
claims. INA § 242(a)(2)(D), 8 U.S.C. § 1252(a)(2)(D). Thomas has not raised a question
of law or a constitutional claim. Although Thomas asserts in his brief that the BIA’s
denial of his motion to reopen violated his procedural due process rights, he does not
adequately develop his argument and we are unable to consider it. See Kopec v. Tate,
361 F.3d 772, 775 n.5 (3d Cir. 2004) (‘“An issue is waived unless a party raises it in its
opening brief, and for those purposes a passing reference to an issue . . . will not suffice
to bring that issue before this court.”’ (quoting Laborers’ Int’l Union v. Foster Wheeler
Corp., 26 F.3d 375, 398 (3d Cir. 1994) (omission in original)). Thomas suggests that the
denial of his application for CAT relief constituted a violation of due process, but that
decision was not part of the BIA’s denial of his motion to reopen sua sponte. We cannot
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review it. See Stone v. INS, 514 U.S. 386, 394, 405-06 (1995) (holding that judicial
review of the BIA’s original removal order is separate from review of any subsequent
BIA orders). To the extent that Thomas suggests that the incompetence of his prior
counsel constituted a denial of due process, any claim of ineffective assistance of counsel
is not properly before us because he did not exhaust that claim before the BIA. See INA
§ 242(d)(1), 8 U.S.C. § 1252(d)(1); Castro v. Att’y Gen., 671 F.3d 356, 365 (3d Cir.
2012).
For the foregoing reasons, we will grant the Government’s motion and dismiss the
petitions for review for lack of jurisdiction.
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