dissenting.
Based upon an analysis under 8 U.S.C. § 1252, I believe we have jurisdiction over a petition for review challenging the BIA’s decision not to reopen the record sua sponte in a removal proceeding. Therefore, I write separately in dissent.
The old adage “don’t think you’re on the right road just because it’s a well-beaten path,” is applicable here.3 In this case, I choose a different path from that taken by the en banc court and many circuits — one that is not new, but just a little less traveled. While the parties did not raise the question of whether 8 U.S.C. *1006§ 1252(a)(2)(B)(ii) affects our jurisdiction, we must examine all the bases of our subject matter jurisdiction, on our own motion if necessary.
The Illegal Immigration Reform and Immigrant Responsibility Act of 1996 (IIRIRA), Pub.L. No. 104-208, 110 Stat. 3009 (1996), “implements restrictions on federal court jurisdiction over several categories of BIA decisions.” Zhao v. Gonzales, 404 F.3d 295, 302 n. 2 (5th Cir.2005). These restrictions are codified at 8 U.S.C. § 1252, representing Congress’s clear intent in immigration proceedings. Accordingly, the jurisdiction proscription in the IIRIRA itself should be the first and only place we look to determine our jurisdiction in this case.
Section 1252(a)(2)(B)(ii) proscribes judicial review of “any ... decision or action of the Attorney General ... the authority for which is specified under this subchapter [8 U.S.C. §§ 1151-1381] to be in the discretion of the Attorney General” (emphasis added). Because § 1252(a)(2)(B)(ii) only strips our jurisdiction to review the use of discretionary authority “specified under this subchapter,” its proscription would not apply to motions to reopen where the quantum of discretion is established by the agency in its implementing regulations. See 8 C.F.R. § 1003.2(a). See, e.g., Ahmed v. Gonzales, 447 F.3d 433, 436-37 (5th Cir.2006) (applying Zhao and determining that it had authority to review motions to continue because the quantum of discretion exercised by the Attorney General in those instances is furnished by the federal regulation and is not specified in the sub-chapter as § 1252(a)(2)(B)(ii) contemplates); Zhao, 404 F.3d at 303 (same, in motion to reopen context); Medina-Morales v. Ashcroft, 371 F.3d 520, 529 (9th Cir.2004) (same, in motion to reopen context). It is here where I part ways with the court majority even though we all agree that we have jurisdiction to entertain Tamenut’s petition for review under section 1252. Ante at 4.
It matters not, in my view, whether we are reviewing decisions on motions to reopen under 8 C.F.R. § 1003.2(a) or § 1003.2(c). Or, for that matter, whether we are reviewing motions for continuances under 8 C.F.R. § 1003.29. Regardless, the discretion established for reviewing any of these motions is established in the regulations, not the statutes.
Further, I do not view Heckler as a road block. Cf Zhao, 404 F.3d at 302-04 (finding jurisdiction to review motions to reopen without conducting a Heckler analysis); Medina-Morales, 371 F.3d at 528-29 (same). I recognize that there are times when the standards against which we judge a BIA’s decision are nonexistent, but reviewing decisions under § 1003.2(a) is not one of those times. The BIA has ruled that it will reopen cases in exceptional circumstances. Matter of J-J- 21 I. & N. Dec. 976, 984 (BIA 1997) (holding that the Board’s power to reopen or reconsider cases sua sponte is limited to exceptional circumstances and is not meant to cure filing defects or circumvent the regulations, where enforcing them might result in hardship). This body of agency law combined with case law pertaining to when exceptional circumstances have been found ought to be sufficient for us to unearth a meaningful standard of review in the § 1003.2(a) context, especially given the alternative. See Ekimian v. INS, 303 F.3d 1153, 1161 (9th Cir.2002) (Bright, J. dissenting); see also Ramirez-Perez v. Ashcroft, 336 F.3d 1001, 1005-06 n. 15 (9th Cir.2003) (recognizing that a history of case law may sufficiently establish standards upon which to review a BIA’s decision). Given this highly deferential and strict standard of review, it may very well be that most BIA decisions that provide some reasons for not reopening will be *1007summarily upheld. The critical factor, however, is that review is proper.
Denying jurisdiction in these cases has clear policy consequences. Giving unfettered authority to administrative agencies to strip our jurisdiction is a slippery slope and one I am not willing to travel downward needlessly. Recognizing the “strong presumption in favor of judicial review of administrative action,” INS v. St. Cyr, 533 U.S. 289, 298, 121 S.Ct. 2271, 150 L.Ed.2d 347 (2001), I dissent.
. Or, perhaps, Sophie Tucker's verse in the 1927 song "Fifty Million Frenchmen Can't Be Wrong," an observation proven grossly inaccurate when France constructed the Maginot Line to defend itself from invasion by Germany at the outset of World War II. Sophie Tucker-Free Music Downloads, etc., http:// www.artistdirect.com/nad/window/media/ page/0,,253277-812683-WMLO, 00.html (last visited Mar. 4, 2008). This defensive line was generally considered one of the great failures of military history. 7 The New Encyclopedia Britannica 672-73 (16th ed.1998).