PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
______________
No. 20-2107
______________
KAYANN ANTOINETTE DARBY,
a/k/a Kayan Darby, a/k/a Larece Knox; a/k/a Kayann Darny
Petitioner
v.
ATTORNEY GENERAL OF THE UNITED STATES OF
AMERICA
______________
On Petition for Review of an Order of the
Board of Immigration Appeals
(Agency No. A200-414-102)
Immigration Judge: Kuyomars Golparvar
______________
Argued: January 27, 2021
Before: RESTREPO, BIBAS, and PORTER,
Circuit Judges.
(Filed: June 17, 2021)
______________
Alexander B. Bowerman [Argued]
David Newmann
Hogan Lovells US
1735 Market Street
23rd Floor
Philadelphia, PA 19103
Counsel for Petitioner Kayann Antoinette Darby
Sheri R. Glaser [Argued]
United States Department of Justice
Office of Immigration Litigation
Room 5214
P.O. Box 878
Ben Franklin Station
Washington, DC 20044
Counsel for Respondent Attorney General
of the United States of America
______________
OPINION OF THE COURT
______________
PORTER, Circuit Judge.
Kayann Darby is a native and citizen of Jamaica living
in the United States. In October 2017, an Immigration Judge
(“IJ”) sustained charges of removability against Darby after
she pleaded guilty to conspiracy to commit mail and wire
fraud. The IJ denied her applications for asylum, withholding
of removal, and protection under the Convention Against
2
Torture (“CAT”), and ordered that Darby be removed to
Jamaica. The Board of Immigration Appeals (“BIA”) affirmed.
Darby moved to reopen her removal proceedings a year and a
half later, well past the statutory deadline to do so. But she
argued that the deadline did not apply because circumstances
in Jamaica had changed concerning her CAT claim. Darby also
argued that the BIA should reopen proceedings because she
had shown new eligibility for an adjustment of status. The BIA
rejected Darby’s arguments and denied her motion to reopen,
so she petitions this Court to review the BIA’s decision. We
will deny the petition.
I
A
Darby entered the United States at an unknown time and
place. In 2001, one of Darby’s family members filed an I-130
Petition for Alien Relative, listing Darby as the beneficiary.
The petition was approved in 2005, and Darby filed for an
adjustment of status in 2009. In 2010, Darby became a lawful
permanent resident of the United States.
In 2012, Darby began participating in a phone scam to
defraud elderly people. The leader of the scam, Ringo, lived in
Jamaica. Ringo would call elderly U.S. citizens from a dis-
guised number and inform them that they had won a lottery and
needed only to pay a tax to receive their winnings. Those who
bought into the scam would send the “tax” money to Ringo
through his intermediaries, one of whom was Darby’s cousin,
Shereen.
Shereen stayed at Darby’s home in New York for sev-
eral weeks and began receiving packages there. Shereen asked
3
Darby to receive a $3,000 wire transfer for her through
Western Union in exchange for ten percent of the amount trans-
ferred. Darby accepted, and she continued to receive similar
wire transfers until Western Union blocked her from sending
or receiving money.
Darby became more involved in the scam and began
traveling to Jamaica to hand-deliver money to Ringo. Eventu-
ally, Ringo sent a package of money to Darby’s house that
never arrived. Darby told Ringo over the phone that she never
received the package, but Ringo suspected she was lying. He
threatened that if Darby did not return the money, he would
“blow up [her] house with bullets.” A.R. 340. Darby insisted
that she had not received the package and told Ringo to stop
sending her money. After that conversation, Darby received no
more funds from Ringo and had no further contact with him.
In 2014, Darby was arrested for her involvement in the
lottery scam. She pleaded guilty to conspiracy to commit mail
and wire fraud in violation of 18 U.S.C. §§ 1349, 1341, and
1343. As part of her guilty plea, Darby provided information
about Ringo to the Assistant U.S. Attorney prosecuting her
case. She identified Ringo in a photograph but did not receive
a reduced sentence in exchange for providing the information.
Darby was sentenced to thirty months in prison and ordered to
pay restitution of $93,836.
B
Because of Darby’s conviction, the Department of
Homeland Security (“DHS”) filed charges of removability
against her under 8 U.S.C. § 1227(a)(2)(A)(i) and (iii). The IJ
sustained the charges. At her merits hearing, Darby claimed
asylum, withholding of removal, and CAT protection. The IJ
4
found Darby credible. He then ruled that Darby was statutorily
barred from receiving asylum and that she had not established
a claim for withholding of removal.
The IJ also denied Darby’s CAT claim, which formed
the sole basis of Darby’s appeal. The IJ ruled that Darby had
not established that she would likely suffer torture if removed
to Jamaica, finding that: (1) nothing in the record indicated that
Ringo or his associates were looking for Darby; (2) Darby had
no contact with Ringo since he threatened her over the phone
in 2013; (3) Ringo did not know Darby’s whereabouts; (4) nei-
ther Ringo nor his associates acted on Ringo’s threats against
Darby; (5) Darby did not know whether Ringo knew of her
cooperation with the U.S. Attorney’s Office; and (6) Darby did
not know whether Ringo or his associates ever acted on threats
they made to other individuals. The IJ also found no objective
evidence that Darby could not relocate to an area in Jamaica
where Ringo could not find her. Finally, the IJ found that even
if Darby had established a likelihood that she would suffer tor-
ture in Jamaica, she had not produced sufficient evidence that
Jamaican government officials would target her or be willfully
blind to any possible torture. Darby submitted evidence sug-
gesting that some Jamaican police officers have been involved
in the lottery scam, but the IJ found that, while there may be
rogue police officers, Jamaican officials oppose and combat
organized crime. The IJ thus denied Darby’s applications for
asylum, withholding of removal, and CAT protection.
Darby appealed her CAT claim to the BIA, which
affirmed the IJ’s decision. The BIA held that the IJ did not
clearly err in finding that Darby had not established that she
would more likely than not experience torture if removed.
Darby had presented “insufficient evidence to demonstrate that
each step of the hypothetical chain of events, with respect to
5
[her possible torture], is more likely than not to occur in this
case.” A.R. 171–72. The BIA also affirmed the IJ’s determina-
tion that Darby had failed to establish that Jamaican officials
would likely acquiesce to her torture. Darby’s evidence that
Jamaican police officers were involved in similar scams was
insufficient to establish acquiescence, “particularly . . . in light
of the [IJ]’s finding that there was also evidence in the record
establishing that the Jamaica government actively opposes and
combats organized crime and government corruption.” A.R.
172.
C
A year and half after the BIA issued its decision, Darby
moved to reopen removal proceedings with the BIA. Darby
claimed two bases for her motion: (1) “a substantial change of
circumstances” regarding her CAT claim; and (2) her “new-
found eligibility for Adjustment of Status . . . based upon an
approved I-130 Petition filed by her United States Citizen son.”
A.R. 22. In support of the first basis, Darby submitted evidence
suggesting that Ringo had been extradited to the United States
and had pleaded guilty to charges related to the lottery scheme.
She claimed in her affidavit that Ringo had completed his sen-
tence and returned to Jamaica, 1 and that he is aware of Darby’s
cooperation against him. Darby also submitted a news article
reporting the death of a woman in Jamaica who Darby claims
was murdered “due to conflict with Ringo concerning the lot-
tery scheme.” A.R. 26.
1
Darby backpedals on this claim in her brief to this Court,
admitting that publicly available information suggests that
Ringo is still serving his sentence in federal prison. See Pet’r
Br. 16 n.3.
6
In support of the second basis for reopening, Darby sub-
mitted documents showing that she is now eligible for an
adjustment of status. After the BIA dismissed Darby’s appeal,
Darby’s son filed an I-130 Petition for Alien Relative on behalf
of Darby. The petition was approved, meaning that Darby can
now petition the agency for an adjustment of status. Darby has
prepared the documents necessary to file the petition, including
a waiver under 8 U.S.C. § 1182(h) for her criminal conviction.
Darby believes “there is an overwhelming likelihood that this
waiver and [her] Adjustment of Status application will be
approved . . . due to [the] extreme hardship” that would be
“suffered by [her] family members” if she were to be removed
to Jamaica. A.R. 35.
The BIA denied Darby’s motion to reopen. The BIA
began by noting that Darby filed her motion to reopen more
than ninety days after the BIA dismissed her appeal, well after
the statutory deadline. It then held that Darby had not estab-
lished that an exception to the ninety-day filing deadline
applies, or that an exceptional situation warranting sua sponte
reopening exists. In response to Darby’s claims that Ringo is
now in Jamaica and is aware of her cooperation against him,
the BIA held that “[t]he evidence presented with the motion
does not establish a material change in country conditions or
circumstances in Jamaica to warrant granting the untimely
motion.” A.R. 3. The BIA emphasized that the motion to reo-
pen contained no evidence warranting reconsideration of its
conclusion that Darby had failed to establish that Jamaican
officials would acquiesce to any act of torture against her. The
motion also lacked evidence that Ringo was involved in the
killing reported in the news article, that Ringo is aware of
Darby’s assistance in his prosecution, or that Ringo has threat-
ened Darby. Finally, the BIA declined to reopen Darby’s case
7
sua sponte, reasoning that “[b]ecoming potentially eligible for
relief after a final administrative decision has been entered is
not a rare or exceptional circumstance and does not, in itself,
constitute an exceptional situation warranting consideration of
an untimely motion to reopen.” A.R. 4.
Darby timely petitioned this Court for review of the
BIA’s denial of her motion to reopen.
II
The BIA had jurisdiction under 8 C.F.R. § 1003.2
(2021) to consider Darby’s motion to reopen removal proceed-
ings. We lack jurisdiction to review the BIA’s decision declin-
ing to reopen Darby’s proceedings sua sponte, as discussed
infra Section IV. See Sang Goo Park v. Att’y Gen., 846 F.3d
645, 651 (3d Cir. 2017). We have jurisdiction over the remain-
ing issues in Darby’s petition under 8 U.S.C. § 1252(a). See
Cruz v. Att’y Gen., 452 F.3d 240, 246 (3d Cir. 2006).
Motions to reopen are especially disfavored in deporta-
tion proceedings. INS v. Doherty, 502 U.S. 314, 323 (1992).
“As a general rule, motions to reopen are granted only under
compelling circumstances.” Guo v. Ashcroft, 386 F.3d 556,
561 (3d Cir. 2004). We thus review the BIA’s denial of a
motion to reopen for abuse of discretion and will not disturb
the BIA’s determination unless it is arbitrary, irrational, or con-
trary to law. Borges v. Gonzales, 402 F.3d 398, 404 (3d Cir.
2005). We review the BIA’s legal conclusions de novo and its
factual findings under the substantial-evidence standard. Id.
8
III
A
Article 3 of the CAT prevents the United States from
deporting an alien to a country “where there are substantial
grounds for believing that he would be in danger of being sub-
jected to torture.” United Nations Convention Against Torture
and Other Cruel, Inhuman or Degrading Treatment or
Punishment, Dec. 10, 1984, 1465 U.N.T.S. 85. An applicant
for relief on the merits under the CAT bears the burden of proof
“to establish that it is more likely than not that he or she would
be tortured if removed to the proposed country of removal.” 8
C.F.R. § 1208.16(c)(2); see Sevoian v. Ashcroft, 290 F.3d 166,
174–75 (3d Cir. 2002). For an act to constitute torture under
the CAT, it must be:
(1) an act causing severe physical or mental pain
or suffering; (2) intentionally inflicted; (3) for an
illicit or proscribed purpose; (4) by or at the
instigation of or with the consent or acquiescence
of a public official who has custody or physical
control of the victim; and (5) not arising from
lawful sanctions.
Auguste v. Ridge, 395 F.3d 123, 151 (3d Cir. 2005).
If the agency rules against the applicant, she may still
obtain relief by moving to reopen removal proceedings with
the agency. The motion must “state the new facts that will be
proven at a hearing to be held if the motion is granted, and shall
be supported by affidavits or other evidentiary material.” 8
U.S.C. § 1229a(c)(7)(B). The BIA has jurisdiction over
motions to reopen, and “[t]he decision to grant or deny a
9
motion to reopen or reconsider is within the discretion of the
[BIA].” 8 C.F.R. § 1003.2(a). The BIA may deny a motion to
reopen “even if the party moving has made out a prima facie
case for relief.” Id.
In moving to reopen, an applicant faces both procedural
and substantive hurdles. To clear the procedural hurdle, an
applicant must file a motion to reopen “no later than 90 days
after the date on which the final administrative decision was
rendered,” subject to limited exceptions. 8 C.F.R.
§ 1003.2(c)(2); see Bamaca-Cifuentes v. Att’y Gen., 870 F.3d
108, 110–11 (3d Cir. 2017). One exception to the ninety-day
deadline is if the motion to reopen is “based on changed cir-
cumstances arising in the country of nationality . . . if such
evidence is material and was not available and could not have
been discovered or presented at the previous hearing.” 8 C.F.R.
§ 1003.2(c)(3)(ii). That is, an otherwise untimely motion to
reopen is considered timely if it is (1) an application for asylum
or withholding of removal; (2) based on changed country cir-
cumstances; and (3) supported by material evidence unavaila-
ble at the previous hearing. Bamaca-Cifuentes, 870 F.3d at
111.
Important here is that an applicant must show that the
evidence she submits is material to her application. See Khan
v. Att’y Gen., 691 F.3d 488, 496 (3d Cir. 2012). The require-
ment to present material evidence is a “heavy burden.” Id. at
497. “To meet the materiality requirement, the petitioner[]
must allege facts that ‘would be sufficient, if proved, to change
the result’ of [her] application.” 2 Id. at 496 (internal quotation
2
Darby argues that the exception for changed country condi-
tions under the Immigration and Nationality Act (“INA”) is
10
marks omitted) (quoting Kaur v. BIA, 413 F.3d 232, 234 (2d
Cir. 2005)). As applied in Khan, the materiality standard
requires evidence rebutting the IJ’s finding “that provided the
basis” for denying relief. See id. at 497 (internal quotation
marks omitted) (quoting Kaur, 413 F.3d at 234).
If the applicant overcomes the procedural hurdle, she
then faces a substantive hurdle. To clear the substantive hurdle,
an applicant must establish prima facie eligibility for relief.
Shardar v. Att’y Gen., 503 F.3d 308, 313 (3d Cir. 2007). To
make a prima facie case, the applicant must “produce objective
evidence showing a ‘reasonable likelihood’ that he can estab-
narrower than the exception for changed country circum-
stances under the regulations. We doubt this is correct, but we
need not address the issue today. This case concerns the
requirement that the alien present “material” evidence on a
motion to reopen, which appears in both the INA and the reg-
ulations. See 8 U.S.C. § 1229a(c)(7)(C)(ii); 8 C.F.R.
§ 1003.2(c)(3)(ii). We have held that the changed-country-
circumstances exception of the regulations—and the applica-
ble procedural requirements—apply to motions to reopen CAT
claims. See Bamaca-Cifuentes v. Att’y Gen., 870 F.3d 108,
110–11 (3d Cir. 2017). Because the language in the regulations
“echoes the language of the INA,” id. at 111 n.10, we have
often treated as interchangeable the procedural requirements of
the INA and regulations on motions to reopen, see, e.g., Liem
v. Att’y Gen., 921 F.3d 388, 395 (3d Cir. 2019); Pllumi v. Att’y
Gen., 642 F.3d 155, 161 (3d Cir. 2011). Our precedents inter-
preting the materiality requirement of the INA thus apply with
equal force to this case. E.g., Khan v. Att’y Gen., 691 F.3d 488,
496–97 (3d Cir. 2012).
11
lish [that he is entitled to relief].” Guo, 386 F.3d at 563 (inter-
nal quotation marks omitted) (alteration in original) (quoting
Sevoian, 290 F.3d at 175). So, in the context of a CAT claim,
“the prima facie case standard for a motion to reopen under the
[CAT] requires the applicant to produce objective evidence
showing a ‘reasonable likelihood’ that he can establish that he
is more likely than not to be tortured.” Sevoian, 290 F.3d at 175
(citation omitted) (quoting In re S-V-, 22 I. & N. Dec. 1306,
1308 (BIA 2000) (en banc)). We have recognized that “no hard
and fast rule can be laid down as to what constitutes a sufficient
showing of a prima facie case for reopening,” because “[m]uch
depends on the nature of the case and the force of the evidence
already appearing in the record sought to be reopened.” Id. at
173 (internal quotation marks omitted) (quoting Matter of
Sipus, 14 I. & N. Dec. 229, 231 (BIA 1972)). The decision
involves both factual and legal determinations and often
requires the BIA to weigh the sufficiency of the evidence. See
id. at 174–75.
We pause here to note the potential for confusion
between the materiality standard of the procedural hurdle and
the prima facie standard of the substantive hurdle. The materi-
ality standard requires that the applicant show “facts that
‘would be sufficient, if proved, to change the result’ of [her]
application.” Khan, 691 F.3d at 496 (internal quotation marks
omitted) (quoting Kaur, 413 F.3d at 234). That might sound
like a prima facie standard, but the two concepts are distinct.
See Doherty, 502 U.S. at 323 (“[T]here [are] ‘at least’ three
independent grounds on which the BIA might deny a motion
to reopen—failure to establish a prima facie case for the relief
sought, failure to introduce previously unavailable, material
evidence, and a determination that even if these requirements
12
were satisfied, the movant would not be entitled to the discre-
tionary grant of relief which he sought.” (quoting INS v. Abudu,
485 U.S. 94, 104 (1988)).
In Khan, we distinguished between the materiality and
prima facie standards. After laying out the materiality standard,
we said that “[e]ven if an alien can demonstrate changed coun-
try conditions, a motion to reopen will not be granted unless
the petitioner establishes prima facie eligibility for relief.”
Khan, 691 F.3d at 496. That is, even if an applicant clears the
procedural hurdle through the changed-country-conditions
exception, she still must overcome the substantive hurdle. See
Shardar, 503 F.3d at 313. In Khan, the petitioner, and a minor
whom he had listed as a derivative beneficiary, claimed asy-
lum, withholding of removal, and CAT protection. Khan, 691
F.3d at 491. They claimed persecution in Pakistan based on the
petitioner’s membership in the Pakistan People’s Party. Id. The
IJ denied the applications in part because he found that the
petitioners had presented no credible evidence that they
belonged to the Pakistan People’s Party. Id. at 491, 497. The
BIA affirmed. Id. at 492. The petitioners moved to reopen
based on changed country conditions, presenting new evidence
of, among other things, increased violence in Pakistan. Id. at
492, 495. The BIA held that the petitioners’ new evidence was
not material to their application “because the petitioners had
not addressed the IJ’s finding . . . that there was no credible
evidence that the petitioners belonged to the [Pakistan People’s
Party].” Id. at 497. We agreed with the BIA: “[w]ithout credi-
ble evidence that the petitioners belonged to the [Pakistan
People’s Party], the petitioners cannot prevail on an asylum
claim based on membership in that group.” Id. In other words,
the petitioners’ new evidence of increased violence—no matter
how substantial—would not have “‘change[d] the result’ of
13
their application” because the evidence did not rebut the IJ’s
holding that they did not belong to the targeted group. Id. at
496 (internal quotation marks omitted) (quoting Kaur, 413
F.3d at 234).
Our interpretation of the materiality standard in Khan
reflects other circuits’ interpretations. Notably, it tracks the
Second Circuit’s decision in Kaur, from which we derived our
definition of materiality. See Khan, 691 F.3d at 496. In Kaur,
the court agreed with the BIA that the petitioner’s new evi-
dence “was not ‘material’ because it did not rebut the adverse
credibility finding that provided the basis for the IJ’s denial of
petitioner’s underlying asylum application.” Kaur, 413 F.3d at
234. Other circuits employing the change-the-result-of-the-
application standard of materiality have interpreted it similarly.
See Perez v. Holder, 740 F.3d 57, 62 (1st Cir. 2014) (“[N]ew
evidence [that] did not even purport to fill” what was “a key
gap in [the] original application” was not material.); Lopez-
Garcia v. Barr, 969 F.3d 749, 752–53 (7th Cir. 2020) (New
evidence was not material when it “only contributed to the
evidence that [the petitioners’ country] continues to have wide-
spread violence and crime, but it did not address the deficien-
cies of their claims.”); Baker White v. Wilkinson, 990 F.3d 600,
606 (8th Cir. 2021) (New evidence that criminal charges
against the petitioner had been dismissed was not material
“[b]ecause the arrests and charges did not form the gravamen
of the IJ’s decision.”). Materiality thus requires, at a minimum,
that an applicant’s evidence in a motion to reopen address the
deficiencies of the initial application. New evidence that does
not address the factual basis for the IJ’s denial of relief would
not change the result of the application and is therefore not
material. See Khan, 691 F.3d at 496–97.
14
With these principles in mind, the daylight between the
materiality standard and prima facie standard becomes clear.
Materiality requires that applicant’s evidence address the defi-
ciencies of her application, while the prima facie standard
requires that the evidence be sufficient to show a reasonable
likelihood that the statutory requirements have been met. See
id. at 497; Sevoian, 290 F.3d at 174–75. When an IJ denies
relief upon finding that an applicant has failed to meet a partic-
ular element of the claim, the applicant moving to reopen must
present evidence directly addressing the element the IJ found
deficient. See Khan, 691 F.3d at 497. The applicant’s evidence,
taken as a whole, is not material if it merely strengthens the
other elements of her claim without addressing the element the
IJ found deficient. Id. But if the applicant presents new evi-
dence that addresses the IJ’s findings and was previously una-
vailable, she clears the procedural hurdle. See id. at 496;
Shardar, 503 F.3d at 313. Then, if the new, material evidence
of changed country conditions can show “a reasonable likeli-
hood that the statutory requirements [for relief] have been sat-
isfied,” she clears the substantive hurdle. Sevoian, 290 F.3d at
173 (alteration in original) (internal quotation marks omitted)
(quoting In re S-V-, 22 I. & N. Dec. at 1308).
Returning to the regulations, even if an applicant makes
it past both the procedural and substantive hurdles, the BIA still
has discretion to deny the motion to reopen. See 8 C.F.R.
§ 1003.2(a). The regulations provide that the BIA may deny a
motion to reopen “even if the party moving has made out a
prima facie case for relief.” Id.; see also Doherty, 502 U.S. at
323.
15
B
We turn now to the facts of this case. The BIA dismissed
Darby’s appeal on the merits because Darby had failed to
establish that (1) she would likely suffer harm by Ringo, (2)
she could not relocate in Jamaica to somewhere safe, and (3)
Jamaican officials would acquiesce to her harm. Darby moved
to reopen well after the ninety-day deadline, so she based her
motion on the exception for changed country circumstances.
See 8 C.F.R. § 1003.2(c)(3)(ii). First facing the procedural hur-
dle, Darby had to present new, material evidence of changed
country circumstances. See Bamaca-Cifuentes, 870 F.3d at
111. And to meet the materiality requirement, Darby’s evi-
dence had to directly address the agency’s reasons that pro-
vided the basis for denying her relief. See Khan, 691 F.3d at
497. Darby’s motion was thus required to contain new evi-
dence addressing the agency’s core findings that she had not
established (1) a likelihood of harm; (2) an inability to relocate;
and (3) official acquiescence. A motion lacking evidence
addressing any one of these core reasons for denying her claim
would not change the result of her application and would thus
fail the materiality requirement. See Khan, 691 F.3d at 497.
The BIA denied Darby’s motion to reopen in part
because it contained no evidence “to warrant reconsideration
of [the] conclusion” that Darby had failed to establish official
acquiescence. A.R. 3. That was not an abuse of discretion.
Darby’s motion did not even claim to introduce new evidence
of official acquiescence. Instead, her motion emphasized her
prior evidence that Jamaican police participate in lottery
schemes, and it merely reasserted that Jamaican officials
“would turn a blind eye towards any persecution against [her].”
A.R. 27. Darby admitted that not all members of law enforce-
ment would turn a blind eye but argued that her previously
16
introduced evidence of law-enforcement involvement in lot-
tery schemes was sufficient to establish official acquiescence
under the CAT. See A.R. 27 (citing De La Rosa v. Holder, 598
F.3d 103 (2d Cir. 2010)). The BIA already rejected that argu-
ment, and Darby’s reassertion of it does not constitute new,
material evidence of changed country conditions.
In her brief to this Court, Darby contends that she did
include new evidence of official acquiescence in her motion to
reopen. Darby’s only proffered evidence on this point is the
news article reporting a murder in Jamaica. Darby claimed in
her affidavit that the murder victim was killed “due to conflict
with Ringo concerning the lottery scheme.” A.R. 34. She
argues that the article shows acquiescence because it “indicates
that Jamaican authorities have not impeded [Ringo’s] ability to
visit acts of violence upon people in Jamaica.” Pet’r Br. 34.
Even if Darby is right that Ringo was behind the murder, the
article does not suggest that Jamaican officials acquiesced to
the murder. Indeed, the article quotes a Jamaican official who
emphasized “the important responsibility of all social agents”
to “restore value for the sanctity of life.” A.R. 63. Even further
removed is the implication that Jamaican officials would
acquiesce to an act of torture against Darby. The BIA thus did
not abuse its discretion in holding that Darby “has not pre-
sented evidence with her motion to warrant reconsideration of
[its earlier] conclusion” that she “did not establish that
Jamaican authorities would acquiesce or turn a blind eye to any
act of torture against her.” A.R. 3. The BIA properly dismissed
Darby’s motion as untimely because “[t]he evidence presented
with the motion does not establish a material change in country
conditions or circumstances in Jamaica.” A.R. 3.
Darby’s motion included evidence addressing the
agency’s other findings, but that evidence cannot rehabilitate
17
her motion. In other words, such evidence would not “change
the result” of her application. Khan, 691 F.3d at 496 (internal
quotation marks omitted) (quoting Kaur, 413 F.3d at 234). No
matter how convincingly Darby rebuts the agency’s finding on
the likelihood of harm or possibility of relocation, her claim is
bound to fail without evidence addressing the agency’s
official-acquiescence finding. See Khan, 691 F.3d at 496–97.
We thus hold that Darby’s failure to present evidence address-
ing the agency’s finding that she had not established Jamaican
officials would acquiesce to an act of torture against her was a
failure to meet the materiality requirement of her motion to
reopen.
We emphasize that Darby’s motion to reopen fails not
because it contained unconvincing evidence of official acqui-
escence, but because it contained no such evidence. Darby fails
the materiality requirement—and falls short of the procedural
hurdle—because she presented no evidence addressing a core
deficiency of her application. See id. at 496–97. Had she pro-
duced such evidence, the BIA could then move to the substan-
tive hurdle and evaluate whether the evidence established a
reasonable likelihood that she can establish that she is entitled
to relief. See Guo, 386 F.3d at 563. Because Darby presented
no evidence of official acquiescence, the BIA did not abuse its
discretion in dismissing her motion to reopen as untimely.
IV
Notwithstanding Darby’s untimely motion, the BIA
retains discretion to reopen proceedings sua sponte. 3 See 8
3
We often note that “sua sponte” reopening is a misnomer. See,
e.g., Sang Goo Park v. Att’y Gen., 846 F.3d 645, 650 n.15 (3d
Cir. 2017). Aside from reopening to correct ministerial errors,
18
C.F.R. § 1003.2(a). The BIA has “unfettered discretion” to
grant or deny a motion to reopen sua sponte. Pllumi v. Att’y
Gen., 642 F.3d 155, 159 (3d Cir. 2011). Because “orders by the
BIA declining to exercise its discretion to reopen sua sponte
are functionally unreviewable,” we generally lack jurisdiction
to review the BIA’s decision on sua sponte reopening. Sang
Goo Park, 846 F.3d at 651. There are two exceptions: First, we
may review the BIA’s decision on a motion to reopen sua
sponte when “the BIA relies on an incorrect legal premise.” Id.
Second, we may review such a decision when the BIA has con-
strained itself through “settled practice to the point where an
irrational departure from that practice might constitute abuse.”
Id. at 651–52.
Darby claimed that her new eligibility for adjustment of
status constitutes an extraordinary circumstance warranting
sua sponte reopening. The BIA’s treatment of Darby’s sua
sponte motion was succinct. In full, the BIA held:
The respondent’s potential eligibility for
adjustment of status in connection with a visa
petition her son filed on her behalf did not occur
until well after our decision. Becoming poten-
tially eligible for relief after a final administra-
tive decision has been entered is not a rare or
typographical mistakes, or defects in service, the BIA “may
only reopen or reconsider any case in which it has rendered a
decision solely pursuant to a motion filed by one or both par-
ties.” 8 C.F.R. § 1003.2(a). A motion to reopen proceedings
sua sponte is really a request that the BIA waive the procedural
requirements of a motion to reopen and exercise its discretion-
ary authority to reopen removal proceedings. Salazar-
Marroquin v. Barr, 969 F.3d 814, 816 n.1 (7th Cir. 2020).
19
exceptional circumstance and does not, in itself,
constitute an exceptional situation warranting
consideration of an untimely motion to reopen.
A.R. 4.
Darby argues that we have jurisdiction to review the
BIA’s refusal to reopen because the BIA committed legal error
by misconstruing her eligibility for adjustment of status. The
DHS had approved the I-130 petition filed by her son, meaning
Darby could apply to become a lawful permanent resident. She
argues that approval of her I-130 petition means she is “actu-
ally eligible” for status adjustment, not potentially eligible.
Pet’r Br. 41. The BIA’s misstatement was a legal error, Darby
says, because our Court has distinguished the legal status of
one who is eligible for adjustment of status from one who is
potentially eligible for adjustment of status. See Hashmi v.
Att’y Gen., 531 F.3d 256, 260 (3d Cir. 2008).
Darby’s argument misapprehends the BIA’s holding.
The BIA’s reason for denying sua sponte reopening was that
Darby’s circumstances are not “rare or exceptional.” A.R. 4.
That is true regardless of whether Darby’s I-130 petition was
approved or pending. A pending I-130 petition may be grounds
for a continuance, Matter of Hashmi, 24 I. & N. Dec. 785, 791,
794 (BIA 2009), but the BIA regularly holds that approval of
an I-130 petition is not an exceptional circumstance justifying
sua sponte reopening, see, e.g., Nkomo v. Att’y Gen., 986 F.3d
268, 271 (3d Cir. 2021); Vithlani v. Att’y Gen., 823 F. App’x
104, 105–06 (3d Cir. 2020) (unpublished opinion). The BIA’s
holding that Darby’s circumstances are not “rare or excep-
tional” did not rest on a legal determination of her status. A.R.
4. Where there is no legal determination, there is no legal error.
20
We requested that counsel address at oral argument the
persuasiveness of Hoque v. Attorney General, 574 F. App’x
133 (3d Cir. 2014) (unpublished opinion). This case is essen-
tially the same as Hoque: The BIA’s denial of reopening did
not rest on a legal determination about the petitioner’s eligibil-
ity for an adjustment of status. See Hoque, 574 F. App’x at 135.
As in Hoque, “the BIA did not rely on a legal premise or artic-
ulate some meaningful standard; rather, we read its opinion as
simply exercising its unfettered discretion.” Id. We thus lack
jurisdiction to review the BIA’s refusal to reopen sua sponte.
See Sang Goo Park, 846 F.3d at 651.
V
Darby next attempts to invoke our jurisdiction by argu-
ing that the BIA denied her due process by ignoring evidence
of “‘insurmountable’ harms” that will befall her family if she
is removed to Jamaica. Pet’r Br. 43. Darby claimed in her
motion to reopen that her mother depends on her for medical
care and that her children are “suffering immensely” without
her. A.R. 28. She argued that these facts, along with the
approval of her I-130 petition, justified reopening. In her brief
to this Court, Darby argues that the BIA violated her right to
due process by not addressing the evidence she introduced in
her motion to reopen about harm to her family. That argument
fails, too.
We retain jurisdiction to review constitutional claims
such as a denial of due process. See 8 U.S.C. § 1252(a)(2)(D);
Hernandez v. Gonzales, 437 F.3d 341, 344–46 (3d Cir. 2006).
To raise a colorable due-process claim, an alien must first state
a liberty or property interest. Hernandez, 437 F.3d at 345–46.
But aliens do not have a liberty or property interest in discre-
tionary relief. Id. at 346. The BIA’s decision to grant or deny a
21
motion to reopen is discretionary: the BIA may deny a motion
to reopen “even if the party moving has made out a prima facie
case for relief.” 8 C.F.R. § 1003.2(a). As many of our sister
circuits have recognized, an alien lacks a constitutionally pro-
tected interest in reopening. E.g., Reyes v. Sessions, 886 F.3d
184, 188 (1st Cir. 2018); Dekoladenu v. Gonzales, 459 F.3d
500, 508 (4th Cir. 2006); Altamirano-Lopez v. Gonzales, 435
F.3d 547, 550–51 (5th Cir. 2006); Ashki v. INS, 233 F.3d 913,
920–21 (6th Cir. 2000); Iglesias v. Mukasey, 540 F.3d 528, 531
(7th Cir. 2008); Baker White v. Wilkinson, 990 F.3d 600, 604–
05 (8th Cir. 2021); Aguilera v. Kirkpatrick, 241 F.3d 1286,
1293 (10th Cir. 2001); Bing Quan Lin v. Att’y Gen., 881 F.3d
860, 868–69 (11th Cir. 2018).
Darby argues that her liberty interest is not in obtaining
discretionary relief, but in having the BIA consider the evi-
dence she presented in her motion. 4 But in United States v.
4
Darby also suggests that when the BIA ignores evidence it
commits a legal error distinct from a due-process violation. See
Pet’r Br. 44–45 (citing Arej v. Sessions, 852 F.3d 665, 667 (7th
Cir. 2017)); Reply Br. 23–25. We doubt whether we have
jurisdiction to consider such a challenge. For one, a failure to
consider evidence does not fit in either of the two categories of
error that we have jurisdiction to consider. See Sang Goo Park
v. Att’y Gen., 846 F.3d 645, 651–52 (3d Cir. 2017). And in
Hoque v. Attorney General, 574 F. App’x 133 (3d Cir. 2014)
(unpublished opinion), which Darby relies on, we said that “we
retain jurisdiction over [the petitioner’s] argument that the BIA
failed to consider the entire record—at least to the extent that
this argument presents a due process challenge.” Id. at 135
(emphasis added). At any rate, this argument falls along with
22
Torres, 383 F.3d 92 (3d Cir. 2004), we held that an alien had
no due-process interest in even being considered for relief
when the statute lacked “‘explicit mandatory language’ that
could create in an alien any protectible expectation of entitle-
ment to relief.” Id. at 105 (quoting Frey v. Fulcomer, 132 F.3d
916, 925 n.7 (3d Cir. 1997)). A motion to reopen likewise cre-
ates no “protectible expectation of entitlement to relief.” Id.
Much less does a motion to reopen sua sponte, which is essen-
tially a request that the BIA waive its procedural requirements
and exercise its discretionary authority to reopen removal pro-
ceedings. See Salazar-Marroquin v. Barr, 969 F.3d 814, 816
n.1 (7th Cir. 2020). In any event, we are confident the BIA
reviewed the evidence Darby presented. The BIA acknowl-
edged Darby’s visa petition and, by extension, the evidence
accompanying that petition. The BIA’s determination “is enti-
tled to a presumption of regularity,” and we are convinced it
“made an individualized determination of [Darby]’s interests.”
Abdulai v. Ashcroft, 239 F.3d 542, 550 (3d Cir. 2001) (internal
quotation marks omitted) (quoting McLeod v. INS, 802 F.2d
89, 95 n.8 (3d Cir. 1986)).
* * *
We will deny the petition for review. 5
Darby’s due-process claim because the BIA adequately con-
sidered the evidence in the motion.
5
We commend counsel on both sides for their excellent advo-
cacy and responsiveness to the Court.
23
RESTREPO, Circuit Judge, dissenting in part and dissenting
in the judgment:
While I agree with my colleagues’ treatment of
Petitioner’s CAT claim in Section III of the opinion, I must
respectfully dissent from Section IV regarding Petitioner’s
motion to reopen sua sponte.
It is worth repeating at the outset that, although the BIA
generally enjoys “unfettered discretion” in granting or denying
a motion to reopen sua sponte, if it relies on an “incorrect legal
premise” in rejecting such a motion we may remand the case
to the BIA for proper reconsideration against the correct legal
background. Pllumi v. Att’y Gen., 642 F.3d 155, 160 (3d Cir.
2011). In my view, this describes precisely the circumstance
before us here. In denying Petitioner’s motion to reopen, the
BIA characterized Petitioner as only being “potentially
eligible” for relief, which was error. A.R. 4. Petitioner was
actually eligible for relief.
We have recognized the legal force of such a distinction
in our prior holding in Hashmi v. Att’y Gen., 531 F.3d 256 (3d
Cir. 2008). In Hashmi, the Immigration Judge denied the
petitioner’s request for a continuance of his removal
proceedings while he was awaiting the adjudication of his I-
130 petition. In reversing the Immigration Judge and BIA, we
agreed with the petitioner that he was “not potentially eligible
to apply for a status adjustment. It appears that he is eligible.
He has already filed his I-130 petition, and is in the process of
having the petition adjudicated.” Id. at 260 (emphasis in
original).
Further, we distinguished the circumstances in Hashmi
to those faced by the petitioner in Khan v. Att’y Gen., 448 F.3d
226 (3d Cir. 2006), who had been awaiting the approval of his
wife’s Labor Certification application pursuant to 8 U.S.C. §
1255(i). If the application were successful, the petitioner’s
wife would have become a legal permanent resident and the
petitioner would have subsequently become eligible to apply
for adjustment of status. Id. at 229. But because the
Certification application was only pending, the petitioner in
Khan was unable to demonstrate he had prima facie eligibility
to apply for adjustment of status, and we approved the
Immigration Judge’s denial of a continuance of his removal
proceedings. Id. at 234-35.
The circumstances here are closer to Hashmi than Khan.
Indeed, Petitioner here is further along in some respects than
the petitioner in Hashmi, as she already has had a I-130
application filed and approved on her behalf by her adult son.
And unlike the petitioner in Khan, she does not have to wait
for some unspecified, indefinite period of time before knowing
whether she will be eligible to apply for adjustment of status.
If the BIA had granted her motion, she would have been
immediately eligible to apply for adjustment of status through
a Section 212(h) hardship waiver.
This view of her actual eligibility is reinforced by the
text of the USCIS Policy Manual, which details the eligibility
requirements for adjustment of status. As the Manual explains:
An adjustment applicant must be eligible to
receive an immigrant visa. An applicant typically
establishes eligibility for an immigrant visa
through an immigrant petition in one of the
categories listed in the table below.
2
USCIS Policy Manual, Vol. 7, Part B, Ch. 2 (emphasis added).
The family-based Form I-130 Petition, the one approved for
Petitioner, is the very first petition listed in the table referenced
in the Manual. The legal effect of the approved I-130 Petition
was to establish Petitioner as eligible to adjust her status. The
BIA relied on an incorrect legal premise in determining
reopening was not warranted by characterizing her eligibility
as merely “potential.”
For these reasons I would have vacated the BIA’s
judgment and remanded the case for reconsideration.
3