### IN THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT

No. 18

- 60818 Summary Calendar

SMIT PATEL , Petitioner

v. WILLIAM P. BARR, U. S. ATTORNEY GENERAL , Respondent

Petition for Review of an Order of the Board of Immigration Appeals BIA No. A201 296 740

Before BARKSDALE, HAYNES, and ENGELHARDT, Circuit Judges. PER CURIAM: * Smit Patel, a native and citizen of India, petitions for review of the Board of Immigration Appeals ’ (BIA) dismissing his appeal of an Immigration Judge’s (IJ) denying his motion to reopen immigration proceedings. He claims : the IJ and the BIA acted arbitrarily and capriciously by refusing to reopen his immigration proceedings sua sponte ; and these refusals a re reviewable because they were based on determinations that the IJ and BIA lacked jurisdiction over

* Pursuant to 5 th Cir. R. 47.5 , the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5 th Cir. R. 47.5.4. United States Court of Appeals Fifth Circuit 

### FILED January 8, 2020

Lyle W. Cayce Clerk Case: 18-60818 Document: 00515263905 Page: 1 Date Filed: 01/08/2020N o. 18

- 60818

2 his pending U

- visa petition (nonimmigrant visa for victims of certain crimes, committed in the United States, who have suffered mental or physical abuse

an d are helpful to investigation or prosecution of criminal activity, see 8 U.S.C. § 1101(a)(15)(U))

. Where, as in this instance, the BIA’s decision relies on reasoning provided in the IJ’s decision, both are reviewed

. Zhu v. Gonzales , 493 F.3d 588, 593 ( 5th Cir. 2007) (citation omitted)

. Questions of law are reviewed de novo ; factual findings, for substantial evidence

. Id. at 594 (citation omitted)

. In 2011, Patel was ordered removed in absentia

. His 2018 motion to

reopen his case reque sted the IJ do so sua sponte and administratively close removal proceedings against him , pending the United States Citizenship and Immigration Services ’ (USCIS) decision on his U

- visa petition. An IJ may, at any time, sua sponte reopen removal proceedings in which
t he IJ has rendered a decision. See 8 C.F.R. § 1003.23(b) (1)

. Whether to do so is within the IJ’s “ complete discretion ”

. Gonzalez

- Cantu v. Sessions , 866 F.3d 302, 306 (5th Cir. 2017) (citation omitted) (noting provision gives BIA same complete discretion ) , cert. denied , 138 S. Ct. 677 (2018)

. Because there is no legal standard governing the IJ’s exercise of this discretion, our court lacks jurisdiction to review challenge s to the refusal to reopen proceedings sua sponte

. Id. (citation omitted)

. O ur court has jurisdiction to review the decision that a “ legal barrier ” prevents the exercise of this discretion, Rodriguez

- Saragosa v. Sessions , 904 F.3d 349, 355 (5th Cir. 2018) ; but, contrary to Patel’s claims, no such barrier existed in this instance. T he IJ and BIA noted USCIS ha s sole jurisdiction
over U

- visa applications ; they did not conclude , however, that this barred their exercising discretion to reopen Patel’s immigration proceedings sua sponte

. Both instead considered whether reopening sua sp onte was warranted , and Case: 18-60818 Document: 00515263905 Page: 2 Date Filed: 01/08/2020N o. 18

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3 concluded it was not

. In short, o ur court lacks jurisdiction to review this decision

. See Gonzalez

- Cantu , 866 F.3d at 306 (citation omitted)

. D ISMISSED

. Case: 18-60818 Document: 00515263905 Page: 3 Date Filed: 01/08/2020