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w . v i l l a no v a . e du/thir dc ir c uit_2014/323NOT PRECEDENTIAL UNITED STATES COURT OF APPEALS FOR THE THIRD CIRCUIT

___________ No. 13

- 1545

___________ SANG GOO PARK , *

Petitioner

v. ATTORNEY GENERAL OF THE UNITED STATES , Respondent *(Amended pursuant to the Court’s Order entered November 13, 201 3)

____________________________________ On Petition for Review of an Order of the Board of Immigration Appeals (Agency No. A 097

- 848

- 626 ) Immigration Judge: Honorable Frederic G. Leeds

____________________________________ Submitted Pursuant to Third Circ uit LAR 34.1(a)

March 19, 2014 Before: JORDAN, GREENBERG and VAN ANTWERPEN , Circuit Judges

(Opinion filed: March 21, 2014 )

___________ OPINION

___________ PER CURIAM
San g Goo Park, a citizen of South Korea, petitions for review of a Board o f Immigration Appeals’ (“BIA”) order denying his motion to reopen removal proceedings2

sua sponte . For the reasons discussed below, we will d ismiss the petition for lack of jurisdiction

. Park entered the United States on a nonimmigrant visa in 1999, wi th authorization to remain six months. His visa was revoked in June 2000. Park applied to adjust his status in 2003, but the United States Citizenship and Immigration Services denied that application on the basis that Park had submitted fraudulent docume nts in su pport of his visa application. Shortly thereaf t er , Park was charged as removable for overstaying his admission period and for submitting fraudule nt documents to obtain a visa. In December 2008, a n Immigration Judge (“ IJ ”) sustained the charg es o f removability. The IJ found, inter alia, that the Government had proved the fraud charge. Park testified that he use d a travel agency to prepare his visa application. That application noted that Park had been employed by Daelin Electronics since 1996

. But Park testified that he had never worked for that company. I nitially , Park stated that he signed the visa application, but , when confronted with the discrepancy, claimed that the signature on the form was not his. T he
BIA dismissed Park’s appeal in A ugust 2009 , holding that the IJ “reasonably found that [Park] signed the visa application aware of its contents

. ” Park filed a timely petition for review , which we denied

. See Park v. Att’y Gen. , 371 F. App’x 343 (3d Cir. 2010) (not precedential).
In Au gust 2012, Park filed a motion to reopen the proceedings sua sponte , alleging that he had recently discovered that his testimony before the IJ had been mistranslated.3

In particular, he alleged that he testified consistently that he “ never filled out or si gned the visa application. ” The BIA denied the motion, stating that “we do not find that [Park’s] case presents ‘exceptional circumstances’ that would warrant the Board’s exercise of its discretion to reopen sua sponte.” In its decision, the Board noted that because Park had been served with a copy of the hearing transcript in March 2008, he could have raised the mistranslation issue on direct appeal to the Board. 1 I nstead of claiming that his testimony was mistranslated, however, Park argued on appeal t o the
BIA that he had signed a blank visa application for the travel agency, and was unaware that incorrect employer information had been included on the form. Park filed a timely petition for review. 2
We have jurisdiction under 8 U.S.C. § 1252(a)(1) to review final orders of removal, and we ordinarily review the denial of a motion to re open for abuse of discretion. See Pllumi v. Att’y Gen. , 642 F.3d 155, 158 (3d Cir. 2011). As the Government argues, however, we lac k jurisdiction to review the arguments that Park raises in this case. The BIA may, at any time, exercise its discretion to reopen removal

1 The BIA also indicated that the motion to reopen was untimely and that Park’s allegations did no t qualify for any of the exceptions to the time limitation. S ee 8 C.F.R. § 1003.2(c)(2)

- (3). Park does not challenge this determination on appeal. He does, however, claim that the “Board simply did not address at all [his] argument . . . that the mistra nslation issue was . . . newly discovered evidence.” But Park’s reliance on newly discovered evidence of the alleged mistranslation was encompassed within his request for sua sponte reopening, which the BIA did clearly address.

2 The petition for review was originally filed on behalf of Park’s wife and son as well, but we granted the Government’s unopposed motion to sever and remand their4

proceedings sua sponte. 8 C.F.R. § 1003.2(a). Sua sponte reopening is “an extraordinary remedy reserved for t ruly exceptional situations.” Matter of G

- D

- , 22 I. & N. Dec. 1132,
1133

- 34 (BIA 1999). Because the regulation governing sua sponte reopening “offers no standard governing the agency’s exercise of discretion,” we generally lack jurisdiction to review the BIA’s denial of a mot ion to reopen sua spon te. Calle

- Vujiles v. Ashcroft , 320 F.3d 472, 475 (3d Cir. 2003). But we can review t he Board’s decision not to exercise its sua sponte authority to reopen proceedings where it relies on an incorrect legal premise

. Pllumi , 642 F.3d at 160. Park argues th at the BIA’s decision was “based on [an] incorrect legal premise that failure by [Park’s] former counsel to raise [the] mistranslation issue in itself, even if that counsel was not fluent in the language in which his client testified in removal proceedings , bars introduction of newly discovered evidence, pursuant to 8 C.F.R. § 1003.2(c)(1).” This description mis interprets the Board’s decision. The BIA did not hold as a matter of law that evidence of the mistranslation could not be introduced

. 3 Rather, th e Board merely rejected Park’s claim that he could not be expected to recognize the mistranslation until he met with his current attorney, who is fluent in Korean

. Thus,

cases to the Board for administrative closure.

3 Park claimed that the audio recording of the hearing has been lost, and relied primarily on his sworn statement that “after consultation with my current attorney, . . . I came to realize that there was a mistranslation of my testimony . . . .” In its order denying reopening, the Board noted that “the part of the testimon y that [Park] claim[s] to have been mistranslated is [his] answer of ‘Yes’ to the question of ‘And did you have to sign the forms for the visa?’ . . ., rather than long and complicated statements by [him].”5

the Board did not “ misperceive[] the relevant law” or “misapprehend[] t he breadth of its own authority, ” Pllumi , 642 F.3d at 160, 162, but instead proper ly exercise d its unreviewable discretion to determine that Park did not establish an exceptional situation arranting sua sponte reopening. 4
Park also contends that the Board’s denial of reopening violated his due process rights. In support of this claim, Park asserts that “[w]here there was concern that testimonial inconsistencies were the result of mistranslations or miscommunications, courts have held that the petition er was denied du e process if she was not given an opportunity to explain any alleged inconsistencies in her testimony.” We have jurisdiction to review BIA’s decision to determine whether it arbitrarily departed from a rule or “settled course of adjudication” in refusing to reopen sua sponte. Calle

- Vujile s , 320 F.3d at 475. To the extent that Park is making this type of argument, we must reject it. There is no evidence that the BIA ignored a general policy that it had established , either explicitly or through practice , relating to reopening cases that challenge alleged mistranslations during an immigration hearing. Cf. Cruz v. Att’y Gen. , 452 F .3d 240, 249

- 50 (3d Cir. 2006) (questioning whether the BIA could depart, without explanation, from its practice of reopening w hen a criminal conviction serving as the basis for a removal order was vacated )

.

4 For similar reason s , we also reject Park’s at tempt to identify another “incorrect legal premise that mistranslation of a material issue that resulted in [a] removal order is not procedurally defective or violates due process.”6

In sum, b ecause the Board neither base d its decis ion on an incorrect legal premise

n or departed from an adopted policy , we have no basis for exercising jurisdiction over i ts determination that exceptional circumstances did not exist to reopen Park’s immigration proceedings . Therefore, we will dismiss the petition for review.