Mejia-Hernandez, et al v. Holder

Filing

FILED OPINION (ALFRED T. GOODWIN, JOHNNIE B. RAWLINSON and JACK ZOUHARY)GRANTED IN PART, DENIED IN PART AND REMANDED, each party to bear its own costs. Judge: ATG Authoring, Judge: JZ Concurring & Dissenting. FILED AND ENTERED JUDGMENT. [7626654]

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FOR PUBLICATION

UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
BERNARDINO EDUARDO MEJIAHERNANDEZ,
Petitioner,
v.
ERIC H. HOLDER JR., Attorney
General,
Respondent.




No. 07-74277
Agency No.
A070-957-121
OPINION



On Petition for Review of an Order of the
Board of Immigration Appeals
Argued and Submitted
November 3, 2010—Pasadena, California
Filed January 27, 2011
Before: Alfred T. Goodwin and Johnnie B. Rawlinson,
Circuit Judges, and Jack Zouhary, District Judge.*
Opinion by Judge Goodwin
Partial Concurrence and Partial Dissent by Judge Zouhary

*The Honorable Jack Zouhary, United States District Judge for the
Northern District of Ohio, sitting by designation.

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COUNSEL
Andrew Knapp and Claire Cifuentes, Cifuentes Knapp &
Associates, Los Angeles, California, for the petitioner.
Glen T. Jager, Office of Immigration Litigation, U.S. Department of Justice, Washington, D.C., for respondent.

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Mary Kenney, American Immigration Council, Washington,
D.C., for the amicus.

OPINION
GOODWIN, Circuit Judge:
In view of a number of pending immigration cases calling
into question the continued vitality of Ekimian v. INS, 303
F.3d 1153 (9th Cir. 2002), we must decide whether we can
review a BIA decision against reopening in the context of a
claim of equitable tolling. We affirm the BIA decision regarding notice. We do not review the sua sponte reopening. We
reverse the BIA decision on equitable tolling, and remand to
the agency for further proceedings.
I.

FACTS AND PROCEDURAL HISTORY

Bernardino Eduardo Mejia-Hernandez, a citizen of Guatemala, petitions for review of a Board of Immigration Appeals
(“BIA”) decision vacating an Immigration Judge’s (“IJ”) suspension of deportation and reinstating an order of deportation.
The BIA found that Mejia received effective notice of his
original merits hearing, was not entitled to the sua sponte
reopening granted by the IJ, and was not entitled to equitable
tolling of the deadline for a motion to reopen under the Nicaraguan Adjustment and Central American Relief Act
(NACARA) § 203(c). Pub.L. No. 105-100, 111 Stat. 2160
(1997), amended by Pub.L. No. 105-139, 111 Stat. 2644
(1997).
Petitioner entered the United States on February 20, 1993.
On November 17, 1993, he applied for asylum. An asylum
officer found that guerillas had beaten Mejia to the point of
near death, but that he had not been harmed on account of any
protected grounds. The officer referred Mejia to an IJ, and the

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Immigration and Naturalization Service (“INS”) served Mejia
with an Order to Show Cause for entering the U.S. without
inspection. Mejia proceeded pro se and presented himself at
several hearing dates through 1996. On one occasion, hearings were rescheduled for insufficient time and on another the
IJ failed to appear. At the last of these appearances, Mejia
submitted a proper change of address form, and notice of a
rescheduled hearing was subsequently sent to his new address
by certified mail. After two delivery attempts, the package
remained unclaimed, and on January 7, 1997, an IJ ordered
Mejia deported in absentia.
On March 31, 1998, Mejia, along with Marta Odelia Perez
Lopez, the mother of his two U.S.-born children, consulted
Bryan Ramos of the Centro de Assistencia Social Guatamalteco. Ramos falsely represented himself as an attorney
licensed to practice immigration law. On behalf of both Mejia
and Lopez, Ramos filed for relief under NACARA § 203(c).
Ramos told Mejia he would be eligible for residency through
his wife, despite the fact that Mejia and Lopez were not yet
legally married. On April 13, 1998, Mejia was informed by
the government that his motion had been rejected due to the
failure to include a $110 filing fee. Mejia met with Ramos,
who assured him that the INS was incorrect in requiring the
filing fee, and that Ramos would correct the problem. Ramos
never refiled.
On November 15, 1998, Mejia and Lopez married. For
almost seven years Mejia and Lopez paid Ramos to handle
their cases. Ramos continued to assure them that their cases
were being handled properly. When Lopez was granted an
appointment concerning her NACARA claim, however,
Ramos refused to attend with her. Ramos’s secretary then
admitted to Lopez that Ramos was not a licensed attorney. On
January 7, 2005, Lopez was granted relief under NACARA.
Mejia, concerned that his case was not being handled properly, consulted his present attorney for the first time on April
30, 2005.

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On July 5, 2005, Mejia filed a motion to reopen to rescind
the order of deportation entered in absentia, renewed his
motion to reopen under NACARA, and raised the issue of
equitable tolling. On August 11, 2005, an IJ reopened the proceedings sua sponte for the following stated reasons: (1)
Mejia’s original asylum claim was timely filed but never
adjudicated; (2) Mejia, with his wife, had two U.S.-born children; (3) Mejia’s wife had been granted lawful permanent resident status through NACARA; and (4) the family would
suffer hardship if Mejia’s claims were not favorably adjudicated. The IJ further noted that such a decision was within the
spirit and intent of NACARA.
At Mejia’s February 8, 2006 merits hearing, an Immigration and Customs Enforcement (ICE) Assistant Chief Counsel
stated that Mejia was statutorily eligible for NACARA relief
and had established the requisite hardship. On appeal, however, ICE opposed, as an abuse of discretion, the IJ’s sua
sponte reopening, as the sole issue on appeal to the BIA.
Mejia then raised the issue of proper notice for his 1997 hearing. The BIA overturned the IJ’s sua sponte reopening,
rejected Mejia’s notice and equitable tolling arguments, and
reinstated the deportation order. Mejia timely appealed to this
court.
II.

STANDARDS OF REVIEW

The BIA reviewed de novo the IJ’s finding concerning
equitable tolling of the NACARA deadline. We review the
BIA’s decision de novo, except to the extent that agency
interpretations are afforded deference. Garcia-Quintero v.
Gonzales, 455 F.3d 1006, 1011 (9th Cir. 2006). The BIA’s
decision reviewed here is unpublished and issued by a single
member of the BIA; it does not carry the force of law, and it
is accorded only Skidmore deference proportional to its thoroughness, reasoning, consistency, and ability to persuade. Id.
at 1012-15 (citing Skidmore v. Swift & Co., 323 U.S. 134
(1944)).

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III.
A.

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DISCUSSION

Mejia received proper notice of his 1997 hearing and
is not entitled to a reopening of that hearing.

Mejia argues that, although he had constructive notice of
his 1997 hearing, he never received actual notice, and should
therefore be allowed to reopen. The BIA correctly rejected
this argument, based on the twice-unclaimed notice of hearing
sent by certified mail to Mejia’s proper address.
[1] An alien ordered removed in absentia has a statutory
right to seek to reopen his case and petition for relief. See 8
U.S.C. § 1229a(b)(5)(C)(ii); 8 C.F.R. § 1003.23(b)(4)(ii). But
the BIA has held that certified mail bearing notice of the original removal hearing sent to an alien’s last known address
provides sufficient notice to effect service, whether or not the
letter was signed for by the alien or by a responsible person
at his address. In re Grijalva, 21 I. & N. Dec. 27, 34 (BIA
1995). Grijalva held that “where service of a notice of deportation1 proceeding is sent by certified mail through the United
States Postal Service and there is proof of attempted delivery
and notification of certified mail, a strong presumption of
effective service arises.” Id. at *37. This court has held “that
notice by certified mail sent to an alien’s last known address
can be sufficient under the [Immigration and Nationality] Act,
even if no one signed for it.” Arrieta v. I.N.S., 117 F.3d 429,
431 (9th Cir. 1997).
This strong presumption of effective notice by certified
mail contrasts with a weaker presumption that results from
regular mail service. Salta v. I.N.S., 314 F.3d 1076, 1079 (9th
Cir. 2002). “Where a petitioner actually initiates a proceeding
1

The change of terms from “deportation” to “removal,” affected by legislative amendment, is inconsequential as the new and old statutes on this
point are otherwise identical. Compare the older 8 U.S.C.
§ 1252b(c)(3)(B) with the newer 8 U.S.C. § 1229a(b)(5)(C)(ii).

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to obtain a benefit, appears at an earlier hearing, and has no
motive to avoid the hearing, a sworn affidavit from petitioner
that neither [he] nor a responsible party residing at [his]
address received the notice should ordinarily be sufficient to
rebut the presumption of [regular mail] delivery.” Id.
[2] Mejia initiated his proceedings to receive a benefit,
appeared at earlier hearings, had no known motive to avoid
his 1997 hearing, and, together with his wife, the only other
adult resident at his address, signed a sworn affidavit that he
did not receive notice. Mejia meets the Salta test for overcoming the weak presumption of constructive notice by regular
mail. But Mejia has presented no additional evidence to overcome the stronger presumption created by the use of certified
mail in his case. The Department of Homeland Security
(DHS) has put into evidence the certified mail envelope and
certificates showing two attempted but unclaimed deliveries
at the correct address, which Mejia’s evidence cannot effectively rebut. Therefore, we hold that Mejia received effective
notice of his 1997 hearing and is not entitled to a reopening
of that hearing under 8 U.S.C. § 1229a(b)(5)(C)(ii).
B.

This court cannot review the BIA’s decision to overturn the IJ’s sua sponte reopening.

Next, Mejia would have us review the BIA decision to
overturn the IJ’s sua sponte reopening of his case. The government contends that precedent prevents such review. See
Ekimian, 303 F.3d at 1159. Mejia and amicus curiae, The
American Immigration Council, counter that a recent
Supreme Court ruling effectively overturns that precedent.
See Kucana v. Holder, 130 S.Ct. 827 (2010). “This court has
jurisdiction to determine whether jurisdiction exists.” Morales
v. Gonzales, 478 F.3d 972, 977 (9th Cir. 2007) (internal quotation marks omitted). We agree with the government’s position.
[3] The Kucana Court found that a motion to reopen was
reviewable. Kucana, 130 S.Ct. at 840. “[T]he presumption

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favoring judicial review of administrative action” means that
“executive determinations generally are subject to judicial
review.” Id. at 839. Precluding review requires clear and convincing evidence that Congress intended to dislodge this presumption. Id. The Court looks for such evidence in statutory
language that reveals Congress’s intent to preclude review. Id.
at 838, 840. An agency’s regulatory language with nothing
more cannot bar a petitioner’s access to the federal courts. Id.
The Court noted explicit statutory references employed by
Congress to make certain agency decisions unreviewable. Id.
at 831-32 (citing 8 U.S.C. § 1252(a)(2)(B)). None of these
statutory reservations of authority, however, exempted from
federal court review a BIA denial of a motion to reopen a
removal proceeding. Kucana, 130 S.Ct. at 840; 8 C.F.R.
§ 1003.2(a).
The overall thrust of Kucana suggests that sua sponte
reopening should be subject to review. There is a longstanding tradition of judicial review of reopenings in immigration
cases; there is no statute suggesting review is not available;
there is a presumption favoring review; and there is a
separation-of-powers concern against giving the Executive
authority to withhold cases from judicial review. See id. at
831. Were this an issue of first impression, a right to review
might be recognized.
[4] Prior to Kucana, however, this court and nine other circuits found a decision not to reopen sua sponte to be one that
was committed to agency discretion by law and, therefore,
unreviewable. See Ekimian, 303 F.3d at 1159; Tamenut v.
Mukasey, 521 F.3d 1000, 1003-04 (8th Cir. 2008) (en banc)
(summarizing other circuit precedents); 5 U.S.C. § 701(a)(2).
Unlike Kucana, the Ekimian court was not looking for statutory or regulatory language affirmatively putting a BIA decision outside of judicial purview. Instead, this court could not
find a “sufficiently meaningful standard against which to
judge the BIA’s decision not to reopen” sua sponte. Ekimian,

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303 F.3d at 1159. Ekimian relies on the narrow Heckler decision and its interpretation of § 701(a)(2) of the Administrative
Procedures Act (“APA”). Id. at 1157, 1158 (citing Heckler v.
Chaney, 470 U.S. 821 (1985) and 5 U.S.C. § 701(a)(2)).2 The
Kucana Court expressed no opinion on whether federal courts
may review a BIA decision to deny reopening sua sponte,
where unreviewability is grounded in an APA § 701(a)(2)
rationale. Kucana, 130 S.Ct. at 839, n.18.
[5] Sua sponte reopening turns, according to the BIA, on
whether a petitioner has demonstrated “exceptional circumstances” to justify the action. Matter of J-J-, 21 I. & N. Dec.
976, 984 (BIA 1997). The Ekimian court could not find a
meaningful standard by which to judge satisfaction of the “exceptional circumstances” test. Ekimian, 303 F.3d at 1159. No
significant changes have occurred since Ekimian that would
allow this panel to find a sufficiently meaningful standard,
and allow us to review sua sponte reopening.
C.

Mejia reasonably relied on the advice of his fraudulent “attorney,” thereby equitably tolling the deadline
for his motion to reopen under NACARA.

The IJ found, and on de novo review the BIA affirmed, that
Mejia’s NACARA motion to reopen was legally insufficient,
as Mejia married his wife two months later than the
NACARA September 11, 1998 deadline for filing. See 8
C.F.R. § 1003.43(e)(1). But the IJ and BIA have incorrectly
assessed whether that deadline was equitably tolled. See
Albillo-De Leon v. Gonzales, 410 F.3d 1090, 1097 (9th Cir.
2005) (finding that a NACARA § 203(c) deadline is subject
to equitable tolling).
2

Section 701(a) of the APA, which governs reviewability of administrative actions, reads: “This chapter applies, according to the provisions
thereof, except to the extent that— (1) statutes preclude judicial review;
or (2) agency action is committed to agency discretion by law.”

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[6] This court “recognizes equitable tolling of deadlines
and numerical limits on motions to reopen or reconsider during periods when a petitioner is prevented from filing because
of deception, fraud, or error, as long as the petitioner acts with
due diligence in discovering the deception, fraud, or error.”
Iturribarria v. I.N.S., 321 F.3d 889, 897 (9th Cir. 2003).
[7] When the issue is fraudulent representation, “the limitations period is tolled until the petitioner definitively learns
of counsel’s fraud.” Singh v. Gonzales, 491 F.3d 1090, 1096
(9th Cir. 2007) (internal quotation marks omitted). In Singh,
the petitioner did not definitively learn of the fraud perpetrated against him when he merely had become suspicious of
his lawyer’s fraud and family members told him he should get
another lawyer. Id.
Equitable tolling is “applied in situations where, despite all
due diligence, the party requesting equitable tolling is unable
to obtain vital information bearing on the existence of the
claim.” Albillo-De Leon, 410 F.3d at 1099-1100 (brackets and
internal quotation marks omitted). Albillo-De Leon had good
reason to suspect his “attorney” was perpetrating fraud. Id. at
1094. He later learned that the court had no record of a
motion alleged to have been filed on his behalf. He filed a
Freedom of Information Act (“FOIA”) request, and, more
than six months after his earlier suspicions, upon receiving the
FOIA response, learned his “attorney” was unlicensed and no
motion had been filed on his behalf. Id. This court held that
Albillo-De Leon acted with due diligence and did not definitively learn that he was being defrauded until the FOIA results
were received. Id. at 1100. The NACARA deadline in question was equitably tolled throughout this period. Id.
Mejia hired someone who falsely represented himself as a
licensed attorney. Ramos was hired on March 31, 1998, to file
a motion to reopen under NACARA § 203(c). Mejia was subsequently informed by the Immigration Court that his motion
to reopen, prepared and filed by Ramos, was rejected due to

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the absence of a filing fee. Ramos assured Mejia that this was
a mistake by the court, that he would properly address.
Mejia went years seeking and receiving assurances, and
continuing to pay Ramos. The BIA viewed Mejia’s continued
reliance on Ramos as a failure in raising his claim of ineffective assistance of counsel, a failure of due diligence, and
therefore, found no equitable tolling of the deadline. But additional facts suggest otherwise.
[8] Mejia first learned that Ramos was not an attorney
through Ramos’s secretary, when Ramos refused to accompany Mejia’s wife to her long-awaited NACARA appointment. The DHS granted Mejia’s wife relief under NACARA
on January 7, 2005. Mejia’s derivative motion to reopen
under NACARA was dependent on the success of his wife
being granted relief. It was not unreasonable for Mejia’s wife
to have relied for so long on Ramos’s assistance; her
NACARA claim took almost seven years to process but ultimately succeeded. Likewise it was not unreasonable that
Mejia, whose claim was derivative to his wife’s, would rely
similarly on Ramos and expect no action from DHS on his
derivative claim until sometime after his wife’s claim was settled. Mejia would not have had his claim settled until 2005
even if he had not been fraudulently represented. The long
period of waiting by Mejia did not show a lack of due diligence, as proved by his wife’s successful result.
Other than the long, but ultimately reasonable, length of
time, the only apparent clue Mejia may have had that Ramos
was defrauding him was the rejection of his motion to reopen
for lack of a filing fee in 1998. It was not unreasonable, however, for Mejia to rely on his attorney’s subsequent assurances, and believe, not that he was being defrauded, but
merely that the DHS had made a mistake. This is not the kind
of evidence that would cause a reasonable person to definitively know that he had been defrauded. See Singh, 491 F.3d
at 1096.

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The BIA found that Mejia “essentially acknowledged in his
July 2005 Sworn Declaration having known already of such
problems back in 1998.” This statement by the BIA of “having known” appears to refer to the problem with the filing fee.
On this basis, the BIA found that Mejia was not eligible for
equitable tolling of the NACARA deadline.
[9] But Mejia did not, in his 2005 declaration, “essentially
acknowledge” that he had definitively learned by 1998 that
Ramos was fraudulently representing him. Instead, Mejia
stated the following about the events of 1998:
the motion which Byron Ramos prepared and filed
the following month was rejected by the Immigration Court with a letter asking me to pay a $110 filing fee. In response, Byron Ramos assured me that
the Court had made a mistake and that he would
timely resubmit my motion. Thereafter, on the
numerous occasions when I asked Byron Ramos for
the status of my case, he continued to assure me that
my motion remained properly pending and that the
Immigration Court was just waiting until the INS
granted my wife’s NACARA application to reopen
my case.
This is not an acknowledgment that Mejia had definitively
learned that he was victim of fraud. Nor is it evidence that
Mejia was effectively put on notice of fraud and thereafter sat
on his claim, failing the test of due diligence. Mejia did what
a reasonable person would do in the situation; he relied on his
lawyer and assumed that his lawyer was correct in stating that
it was the DHS that had made a mistake. He reasonably
waited for his wife’s claim to be settled before his would be.
The BIA’s decision against equitable tolling was an abuse of
discretion; the NACARA § 203(c) deadline was equitably
tolled.
Given that, in 2006, an ICE Assistant Chief Counsel conceded that Mejia had established the requisite hardship and

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met the statutory requirements for NACARA relief, and once
equitable tolling is recognized, this case is reduced to the
denial of relief based on a fraudulent attorney failing to
include a $110 filing fee with Mejia’s April 10, 1998 motion
to reopen, and then lying about it. Such a result would blindly
ignore the Congressional intent inherent in NACARA, and
break up a family otherwise entitled to relief. A calculation
and application of the period of equitable tolling corrects this
result.
[10] There are two key steps in the process of Mejia definitively learning of Ramos’s fraud. Sometime around January 7,
2005 Mejia was told that Ramos was not a licensed attorney,
while also learning that Ramos’s efforts had, nonetheless, succeeded in securing relief for his wife. On April 30, 2005,
Mejia’s present attorney called the Executive Office for
Immigration Review’s automated system and found no record
that any motion to reopen had ever been filed by the fraudulent “attorney” on Mejia’s behalf. In Albillo-De Leon, 410
F.3d at 1099-1100, the court continued to toll the deadline
despite petitioner’s early suspicions about his “attorney” and
despite being told by a court clerk that there was no record of
his motion; it was only after receiving a FOIA response that
showed a motion had never been filed and that the “attorney”
was not licensed that the petitioner “definitively learned” of
the fraud. Applying the same rationale, Mejia did not definitively learn that he was subject to fraud until he learned that
his “attorney” was not licensed and was told by the court that
no motion on his behalf existed. That was when Mejia finally
obtained the “vital information bearing on the existence of the
claim.” Singh, 491 F.3d at 1096. That date is April 30, 2005.
[11] The period of equitable tolling began when Mejia first
contacted Ramos, March 31, 1998. With an April 30, 2005
end date, the period of tolling was seven years and one month.
The NACARA § 203(c) deadline in question was September
11, 1998. 8 C.F.R. 1003.43(e)(1).3 The deadline then was
tolled until October 11, 2005.
3

The deadline in question was for a motion to reopen that included the
requirement that the applicant be married to an ultimate NACARA benefi-

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[12] Before this date, on July 5, 2005, Mejia filed a “Motion to Reopen Deportation Proceedings to Rescind an Order
of Deportation Entered in Absentia.” As part of that motion,
Mejia requested adjudication nunc pro tunc of his rejected
April 10, 1998 NACARA § 203(c) motion to reopen. Alternatively, he asked that the new motion be adjudicated for such
purposes on the basis of equitable tolling. We hold that this
motion timely meets the NACARA § 203(c) requirements,
making Mejia eligible for NACARA relief.
IV.

CONCLUSION

Mejia received effective notice of his 1997 hearing. Despite
Kucana, the BIA reversal of the IJ’s sua sponte reopening is
not subject to review by this court. We do not disturb these
BIA decisions. However, we reverse the BIA decision that
Mejia’s NACARA application was not subject to equitable
tolling and remand for further proceedings consistent with this
decision.
GRANTED IN PART, DENIED IN PART AND
REMANDED, each party to bear its own costs.

ZOUHARY, District Judge, concurring in part, dissenting in
part and concurring in the judgment:
I concur with most of the majority’s decision and with the
judgment. I respectfully part ways, however, with regard to
ciary. See 8 C.F.R. §§ 1003.43(e)(1), (b)(4), and (d)(5). It was not, as the
DHS seems to suggest, a marriage deadline. Mejia needs only to have
been married by the tolled deadline. This is not only a logical result, but
also the equitable result as a legitimate attorney would have alerted Mejia
to the fact that the only way he could remain in the U.S. with his soon-tobe wife and their two children would be to move the date of his wedding
up by two months. It seems safe, but ultimately unnecessary, to assume
that he would have done so to keep his family intact.

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the majority’s conclusion that we are unable to review the
BIA’s decision to overturn the IJ’s sua sponte motion to
reopen. I believe the Supreme Court’s decision in Kucana v.
Holder, 130 S. Ct. 827 (2010), implicitly overrules this
Court’s earlier decision in Ekimian v. INS, 303 F.3d 1153 (9th
Cir. 2002).
I agree with the concurring opinion in Zetino v. Holder, 596
F.3d 517, 529 (9th Cir. 2010) that Heckler v. Chaney, 470
U.S. 821 (1984), was misapplied in Ekimian. Specifically,
Heckler concluded that “Congress can restrict the jurisdiction
of federal courts over certain agency actions under the APA
by deeming them ‘discretionary’ and drafting ‘statutes’ that
provide a court ‘no meaningful standard against which to
judge the agency’s exercise of discretion.’ ” Id. at 830.
Heckler however does not allow an agency to restrict judicial review of its own decisions by declaring those decisions
discretionary, or by providing no standard for review. This
would have the undesirable effect of allowing agencies to
insulate themselves from judicial review, which “contravenes
the ‘presumption . . . “that executive determinations are generally subject to judicial review.”’ ” Zetino, 596 F.3d at 529
(Lawson, J., concurring) (citing Kucana, 130 S. Ct. at 839).
Moreover, this Court recently published an amended opinion in Zetino which casts further doubt on the precedential
value of Ekimian. Unlike the original version, the amended
opinion reviews the BIA’s denial of petitioner’s motion to
accept an untimely brief. That is precisely the process suggested in the original concurring opinion. See Zetino,622 F.3d
1009, 1012-13 (9th Cir. 2010) (amending 596 F.3d 517).
While neither Zetino nor Kucana deal with the exact issue
at hand—our ability to review the BIA’s decision to overturn
the IJ’s sua sponte reopening—I do not believe there is any
reason to treat review of the BIA’s decision to reverse an IJ’s
sua sponte reopening differently from the question reached by

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Kucana the reviewability of the BIA’s denial of a motion to
reopen removal proceedings. In Kucana, there was no clear
evidence that Congress intended to make sua sponte actions
unreviewable by courts. See Kucana, 130 S. Ct. at 827-28.
Likewise, there is no clear evidence here that Congress
intended to make unreviewable the similar case of the BIA’s
reversal of a sua sponte motion to reopen by an IJ. And a
decision to reopen can be made under “exceptional circumstances,” a standard that allows for jurisdiction and review by
the courts.
Based on the Kucana and Zetino decisions, I would find
that we have jurisdiction to review the BIA’s decision and,
therefore, respectfully dissent from that portion of the majority’s opinion.