2015 Decisions

Opinions of the United

States Court of Appeals

for the Third Circuit

3-25-2015

Heng Chen v. Attorney General United States

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Recommended Citation

"Heng Chen v. Attorney General United States" (2015). 2015 Decisions. Paper 290.

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 NOT PRECEDENTIAL

UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

______________

No. 14-3828

______________

HENG CAI CHEN,

Petitioner

v.

ATTORNEY GENERAL OF THE

UNITED STATES OF AMERICA,

Respondent 

_______________________

On Petition for Review from the Board of Immigration Appeals

BIA-1 No. A094-799-621

Immigration Judge: The Honorable Eugene Pugliese

_______________________

Submitted Pursuant to Third Circuit L.A.R. 34.1(a)

March 16, 2015

Before: SMITH, JORDAN, and VAN ANTWERPEN, Circuit Judges

(Filed: March 24, 2015)

_______________________

OPINION

_______________________

Smith, Circuit Judge.

 

 This disposition is not an opinion of the full court and pursuant to I.O.P. 5.7 does not 

constitute binding precedent.
2

On September 1, 2006, the Department of Homeland Security served Heng Cai 

Chen, a native and citizen of the People’s Republic of China, with a Notice to Appear. 

The notice charged Chen with being removable under 8 U.S.C. § 1182(a)(7)(A)(i)(I) as 

an inadmissible immigrant who entered the United States without the required entry 

documents. Chen’s subsequent application for asylum, withholding of removal, and 

relief under the Convention Against Torture was denied. His appeal to the Board of 

Immigration Appeals (BIA) was unsuccessful, as were two motions to reopen. Chen 

filed a third motion to reopen after learning that he was the beneficiary of an approved I130 petition filed by his United States citizen wife. Although Chen recognized that he

was ineligible for a waiver of his unauthorized presence in the United States under 8 

C.F.R. § 212.7(e)(4)(v) and (vi), he urged the BIA to reopen his proceeding, vacate his

final order of removal, and then administratively close his proceeding so he could file an 

I-601A application for waiver of his inadmissibility. AR 15.

In an order dated August 6, 2014, the BIA denied Chen’s third motion to reopen. 

It pointed out, and Chen does not dispute, that the motion was both number-barred and 

untimely, and that the motion failed to establish that it satisfied any exception to these 

filing requirements. See 8 U.S.C. § 1229a(c)(7)(A), (c)(7)(C)(i) & (ii). The order further 

stated that Chen failed to demonstrate exceptional circumstances, which would warrant 

granting the motion sua sponte. As authority, the BIA provided a pincite to its own 

precedent in In re J-J, 21 I.&N. Dec. 976, 984 (BIA 1997), which acknowledged that its 

power to sua sponte reopen was limited to exceptional situations and “is not meant to be 

used . . . to otherwise circumvent the regulations, where enforcing them might result in 
3

hardship.” In a footnote, the BIA instructed that any request “for an unauthorized 

presence waiver would have to be pursued before the Department of Homeland 

Security.” Thereafter, Chen filed a timely petition for review.1

“Because the BIA retains unfettered discretion to decline to sua sponte reopen or 

reconsider a deportation proceeding, this court is without jurisdiction to review a decision 

declining to exercise such discretion to reopen or reconsider the case.” Calle-Vujiles v. 

Ashcroft, 320 F.3d 472, 475 (3d Cir. 2003). In Pllumi v. Attorney General, 642 F.3d 155 

(3d Cir. 2011), we recognized an exception to the rule set out in Calle-Vujiles if the 

“decision not to reopen sua sponte reflects an error of law.” Id. at 160. 

Chen acknowledges that our jurisdiction to review a decision to deny sua sponte

reopening is limited and recites the above legal principles twice in his opening brief. 

Appellant’s Opening Br. at 5, 6. Yet Chen fails to identify the error of law that would 

permit our exercise of jurisdiction. Id. Our review of the record before us fails to reveal

that the BIA’s decision was based on a misperception of the applicable law. 

Accordingly, we lack jurisdiction to review the BIA’s sua sponte denial of Chen’s third 

motion to reopen. We will dismiss Chen’s petition for review.

 

1 The BIA exercised jurisdiction under 8 C.F.R. § 1003.2. We have jurisdiction under 8 

U.S.C. § 1252(a).