IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
_____________________
No. 00-60291
_____________________
KUANG-TE WANG,
Petitioner,
v.
JOHN ASHCROFT, U.S. Attorney General,
Respondent.
---------------------------------
Petition for Review of an Order of
the Board of Immigration Appeals
---------------------------------
July 31, 2001
Before HIGGINBOTHAM, DAVIS and BENAVIDES, Circuit Judges.
BENAVIDES, Circuit Judge:
The petitioner, Kuang-Te Wang, a native of Taiwan, entered
the United States on January 18, 1985 as a nonimmigrant visitor
authorized to remain for a period not to exceed one year.
Petitioner’s wife, Yu-Fen Wang, entered the United States
approximately one month later in February 1985. Wang and his
wife remained illegally in the United States beyond the
expiration of the one year period. In 1989, federal agents,
without a warrant, entered Wang’s home and arrested him on
suspicion of transporting illegal aliens.1 During the course of
1
Wang’s arrest did not result in the prosecution of criminal
charges against him.
the arrest, Wang’s status as an illegal alien was revealed.
Consequently, on May 24, 1989, the Immigration and Naturalization
Service (INS) issued an Order to Show Cause, charging Wang as
being deportable pursuant to § 241(a)(2) of the Immigration and
Nationality Act (INA), 8 U.S.C. § 1251(a)(2), in that he remained
in the United States beyond the time authorized.
At Wang’s deportation hearing, his counsel filed a motion to
suppress the evidence submitted by the INS to establish the
deportability charge. The motion alleged that the evidence was
inadmissible as the fruits of an illegal search. The immigration
judge denied the motion to suppress and found Wang deportable.
Wang appealed and the Board of Immigration Appeals (“BIA” or “the
Board”) affirmed. Wang did not petition this Court to review the
Board’s decision. Instead, on August 23, 1993, Wang timely filed
a motion to reopen his deportation proceedings before the BIA,
arguing that he was eligible for suspension of deportation under
INA § 244(a), as he had been in continuous physical presence in
the United States for seven years. During the pendency of this
motion two significant events occurred. First, a new regulation
was approved by the Attorney General, effective July 1, 1996,
providing that:
(c) Motion to reopen.
(2) Except as provided in paragraph (c)(3) of this section,
a party may file only one motion to reopen deportation or
exclusion proceedings (whether before the Board or the
Immigration Judge) and that motion must be filed no later
than 90 days after the date on which the final
2
administrative decision was rendered in the proceeding
sought to be reopened, or on or before September 30, 1996,
whichever is later.
8 C.F.R. § 3.2(c)(2). Second, in 1997, Wang became eligible to
apply for an “adjustment of status.” Wang’s wife was sponsored
by her employer for alien employment certification. She received
an approved certification issued by the U.S. Department of Labor
and an approved immigrant visa petition pursuant to INA § 203(b).
Approval of the labor certification and visa petition enabled
Wang’s wife to apply for lawful permanent resident status under
the terms of § 245(i) of the INA, a process called “adjustment of
status.” 8 U.S.C. § 1255(i). An application for adjustment of
status allows the applicant to apply along with his or her spouse
and minor children. INA § 203(d), 8 U.S.C. § 1153(d). INS
regulations, however, required Wang to file his application in
relation to his ongoing deportation proceedings. 8 C.F.R. §
245.2(a).
Wang thus filed a “Motion to Remand” with the BIA in October
1997 asserting his eligibility for an adjustment of status. The
BIA rendered a decision on March 21, 2000 – six and a half years
after his original filing – denying Wang relief. In its order,
the BIA rejected Wang’s request for suspension of deportation in
his August 1993 motion to reopen. Wang does not challenge this
ruling. The Board then construed his October 1997 “Motion to
Remand” as a motion to reopen – a motion to reopen filed
3
subsequent to, and distinct from, his August 1993 motion to
reopen. The BIA found the motion untimely under § 3.2(c)(2) and
concluded that it was therefore without jurisdiction to consider
the motion. Wang now petitions this Court for review of the
Board’s denial of his October 1997 motion as untimely. Wang
argues that his motion should have been construed as a motion to
remand or, alternatively, as a supplement to his August 1993
motion to reopen. Further, Wang maintains that even if the
October 1997 motion was properly construed as a separate and
untimely motion to reopen, the Board abused its discretion by not
exercising its authority to reopen his deportation proceedings
upon its own motion pursuant to 8 C.F.R. § 3.2(a).
Because Wang’s challenge involves the Board’s interpretation
and application of its own regulations, we accord the Board’s
decision significant deference. Citizens for Fair Utility
Regulation v. United States Nuclear Regulatory Comm’n, 898 F.2d
51, 54 (5th Cir. 1990). We will give the agency’s interpretation
of its own rules controlling weight “unless it is plainly
erroneous or inconsistent with the regulation.” Wright v. United
States, 164 F.3d 267, 269 (5th Cir. 1999). Cognizant of the
limited nature of our review, we examine Wang’s challenges to the
Board’s order.
Wang first contends that his October 1997 motion should have
4
been treated as a motion to remand rather than a motion to
reopen. Wang’s contention is precipitated by the fact that a
motion to remand, unlike a motion to reopen, is not subject to
any specific time or numeric filing requirements. Wang, however,
offers no legal or practical reason, other than the self-applied
label at filing, as to why his October 1997 motion should be
treated as a motion to remand rather than a motion to reopen.
Three distinct motions are available to aliens to challenge
an adverse agency ruling – a motion to reopen, a motion to
reconsider, and a motion to remand. Motions to reopen and
motions to reconsider are governed by 8 C.F.R. §§ 3.2 and 3.8.
“A motion to reopen seeks fresh consideration on the basis of
newly discovered facts or a change in circumstances since the
hearing, or solicits an opportunity to apply for discretionary
relief.” 1 Charles Gordon, Stanley Mailman, & Stephen Yale Loehr,
IMMIGRATION LAW AND PROCEDURE § 3.05[7][a] (Matthew Bender rev. ed.
2001). A motion to remand similarly seeks consideration of new
facts or changed circumstances. Motions to remand, although not
expressly provided for by the INA or INS regulations, are
commonly directed to the Board and are an accepted part of the
appellate process. Matter of Coelho, 20 I. & N. Dec. 464, 471
(BIA 1992). The Board’s recent decision in In re L-V-K, Int.
Dec. 3409, 1999 WL 607159 (BIA 1999), however, explained the
limited role of a motion to remand and its relation to a motion
5
to reopen: “unless and until such time as the proceedings are
reopened, the Board has no jurisdiction to entertain a motion
remand, which is in substance a motion to reopen, because the 90-
day limit for filing a motion to reopen has expired.”2 In re L-
V-K, Int. Dec. 3409, 1999 WL 607159 (BIA 1999). A motion to
remand thus allows the Board, under appropriate circumstances, to
remand an open case to the immigration judge for further
proceedings. See, e.g., In re Fructoso Luviano-Rodriguez, 21 I.
& N. 235, 1996 WL 136874 (BIA 1996); Matter of Tee, 20 I. & N.
949, 949, 1995 WL 28497 (BIA 1995).
In the present case, the decision of the immigration judge
matured into a final order – i.e., the case closed – when Wang
elected not to appeal the BIA’s affirmance of his deportation
order to this Court. 8 C.F.R. § 3.39. In order to return the
matter to the immigration judge for fresh consideration of Wang’s
changed circumstances, the Board would need to first reopen
Wang’s case. Thus, the Board properly construed his motion as a
motion to reopen, rather than a motion to remand.
Wang next argues that his October 1997 motion should have
2
To the extent relevant, Wang’s argument that he should not
be bound by In re L-V-K because it was decided after the filing of
his October 1997 motion is unavailing. Even before Wang filed his
original motion in 1993, the BIA had announced the rule that “where
a motion to remand is really in the nature of a motion to reopen or
a motion to reconsider, it must comply with the substantive
requirements for such motions.” Matter of Coelho, 20 I. & N. Dec.
464, 471 (BIA 1992).
6
been considered a supplement to his original August 1993 motion
to reopen. While this argument is certainly plausible,
ultimately we cannot find unreasonable the Board’s conclusion
that the October 1997 motion was a separate and thus untimely
motion. Several facts support the Board’s conclusion that it was
a separate motion. First, Wang’s motion was not styled as a
supplement nor contained any other indication that it was
intended as a supplement to a prior motion, rather than a
separate motion for relief. Second, in correspondence, counsel
for Wang referred to the motion to remand as a separate motion,
stating that “[c]urrently, the above-mentioned Motion to Remand
and a Motion to Reopen, filed by Respondent’s previous attorney,
remain pending before the Board. Please advise as to the status
of these Motions if possible.” Given these facts, we cannot find
that the Board’s construction of the October 1997 motion as a
separate motion to reopen was plainly erroneous.
Finally, Wang contends that the BIA abused its discretion by
not exercising its power under § 3.2(a) to reopen his case upon
its own motion.3 The Government responds that Wang’s failure to
3
3.2 Reopening or reconsideration before the Board of
Immigration Appeals.
(a) General. The Board may at any time reopen or reconsider on
its own motion any case in which it has rendered a decision. A
request to reopen or reconsider any case in which a decision has
been made by the Board, which request is made by the Service, or by
the party affected by the decision, must be in the form of a
written motion to the Board. The decision to grant or deny a
motion to reopen or reconsider is within the discretion of the
7
exhaust his administrative remedies, by not asserting before the
BIA that it invoke this authority, denies our Court jurisdiction
to review his claim. Additionally, the Government asserts that
we are without jurisdiction to review the claim because the
Board’s ability to reopen cases on its own motion is within its
unfettered discretion and not subject to review for abuse.
Finally, that even if we may review such Board action, the Board
did not abuse its discretion in refusing to act upon its own
motion.
Necessarily, the first question we must answer is whether
Wang failed to exhaust his administrative remedies by not
requesting the BIA to exercise its authority under § 3.2(a).
Section 106(c) of the INA, applicable to Wang, states that unless
an alien exhausts his available administrative remedies, the
deportation order “shall not be reviewed by any court.” 8 U.S.C.
§ 1105a(c). Because it is statutorily mandated, an alien’s
failure to exhaust his administrative remedies serves as a
jurisdictional bar to our consideration of the issue. Townsend
v. INS, 799 F.2d 179, 181 (5th Cir. 1986). An alien fails to
exhaust his administrative remedies with respect to an issue when
the issue is not raised in the first instance before the BIA –
Board, subject to the restrictions of this section. The Board has
discretion to deny a motion to reopen even if the party moving has
made out a prima facie case for relief.
8 C.F.R. § 3.2(a).
8
either on direct appeal or in a motion to reopen. Goonsuwan v.
Ashcroft, 252 F.3d 383, 388-89 (5th Cir. 2001).
While this rule is clear, its application to the facts of
this case is more complicated. Section 3.2(a) grants the Board
power to act sua sponte to reopen a case. In re G-D-, Int. Dec.
3418, 1999 WL 1072237, (BIA 1999). Initially, it seems
contradictory to require a petitioner to raise an issue upon
which the Board acts sua sponte, since the Board, by definition,
is acting “on its own motion.” In this regard, Wang argues
further that since the Board is aware of its authority under §
3.2(a), its failure to act implicitly rejects the invocation of
that authority and we have jurisdiction to review the decision
for abuse of discretion. We disagree. Courts and agencies have
a full panoply of powers which they may invoke sua sponte. While
an agency may act upon its own motion, a party that seeks to
challenge on appeal the failure to act sua sponte must
sufficiently raise the issue in the first instance before the
agency. See Luis v. INS, 196 F.3d 36, 40 (1st Cir. 1999)
(finding that an alien failed to exhaust her administrative
remedies when she did not request the Board to invoke its sua
sponte authority in her motions to reopen). In the present case,
Wang did not argue before the BIA in his October 1997 motion that
“exceptional circumstances” warranted the exercise of their sua
9
sponte power under § 3.2(a).4 We are therefore without
jurisdiction to consider the issue on appeal.
Having reviewed and rejected each of Wang’s attacks on the
decision of the Board, the petition for review is DENIED.
4
The Board’s decisions indicate that an untimely motion to
reopen will be considered only if there are exceptional
circumstances. Matter of J-J-, Int. Dec. 3323 (BIA 1997); see also
Motions and Appeals in Immigration Proceedings, 61 Fed. Reg.
18,900, 18,902 (1996) (“(S)ection 3.2(a) of the rule provides a
mechanism that allows the Board to reopen or reconsider sua sponte
and provides a procedural vehicle for the consideration of cases
with exceptional circumstances.”). A petitioner seeking to have
the BIA act upon its own motion should therefore accompany an
untimely motion with an explanation of the exceptional
circumstances that justify reopening the case. If the Board then
finds that the petitioner’s claim does not satisfy its “exceptional
circumstances” standard, this Court could then decide its
jurisdiction to review the decision for an abuse of discretion. We
are not faced with such a situation here.
10