NOT PRECEDENTIAL

UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

____________

No. 23-2762

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JUAN CHEN, Petitioner

v.

ATTORNEY GENERAL OF THE UNITED STATES OF AMERICA

____________

On Petition for Review of a

Decision of the Board of Immigration Appeals

(A095-710-240)

Agency: BIA

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

April 19, 2024

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Before: HARDIMAN, PHIPPS, and SMITH, Circuit Judges.

(Filed: May 24, 2024) ___________

OPINION*

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PHIPPS, Circuit Judge.

A citizen of the People’s Republic of China who entered the country in 2005 and 

was ordered removed in 2010 sought relief from that final order of removal in 2021. She 

did so through two motions before the Board of Immigration Appeals: a motion to reopen

and a motion to sua sponte reopen – both requesting cancellation of removal. The BIA 

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

constitute binding precedent.
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denied both motions, and through a timely petition, the Chinese national sought review of 

those rulings. For the reasons below, we will deny in part and dismiss in part her petition.

FACTUAL BACKGROUND AND PROCEDURAL HISTORY

In May 2005, Juan Chen, a Chinese national, entered the country at Los Angeles 

International Airport, presented herself for inspection, and applied for admission, but she 

did not have proper entry documents. The Department of Homeland Security granted her

parole and later charged her with removability through a document labeled as a ‘Notice to 

Appear,’ which is often abbreviated as ‘NTA.’ Her NTA, however, did not state the date 

and time of her hearing; that information was provided by a subsequent Notice of Hearing. 

For the next three years, Chen remained in the country while the removal 

proceedings were pending. At a hearing in New York, Chen conceded removability but

sought several forms of relief from removal: asylum, statutory withholding of removal, and 

relief under the Convention Against Torture. About two years later, while her immigration 

proceedings were pending, she married another Chinese national, whom DHS also sought 

to remove.

Following a 2008 hearing, after the proceedings were transferred to New Jersey and 

consolidated with her husband’s claims for relief from removal, an Immigration Judge 

denied all relief to the couple. Without success on administrative appeal, Chen moved to 

reopen the proceedings. Although the BIA denied that motion, it recognized that service 

of its prior decision had not been perfected, so it reissued that decision on April 27, 2010. 

Chen then unsuccessfully petitioned for review of the agency’s denial of relief from 

removal. See Shan En Zhang v. Att’y Gen., 423 F. App’x 243, 249 (3d Cir. 2011) (per 

curiam). 
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In 2012 and again in 2018, Chen submitted additional, separate motions to reopen. 

The BIA denied both motions, and those rulings were upheld by this Court. See Shan En 

Zhang v. Att’y Gen., 548 F. App’x 765, 767 (3d Cir. 2013); Clerk Order, Juan Chen v. Att’y 

Gen., No. 19-2699 (3d Cir. Oct. 18, 2019) (dismissing petition for failure to file a brief).

In July 2021, Chen filed a fourth motion to reopen, and she alternatively moved to 

have the BIA reopen her proceedings sua sponte. In her motion to reopen, Chen argued 

that she satisfied the four prerequisites for cancellation of removal, which are necessary 

but not sufficient conditions for that form of relief. See 8 U.S.C. § 1229b(b)(1) (setting 

forth the prerequisites), (e)(1) (setting an annual aggregate limit of 4,000 non-citizens who 

may receive an adjustment of status). For the first of those prerequisites – ten years’

continuous presence in the country before the request for cancellation, see id.

§ 1229b(b)(1)(A) – Chen argued that her period of continuous presence was not terminated 

by her receipt of the NTA as it normally would be under the stop-time rule, see id.

§ 1229b(d)(1). According to Chen, the NTA that she received could not trigger the stoptime rule in light of a Supreme Court decision from April 29, 2021. That case, Niz-Chavez 

v. Garland, 593 U.S. 155 (2021), held that to stop the period of continuous presence, an 

NTA must specify the time and date of the hearing – and her NTA did not. Id. at 160–61. 

Based on that change of law, Chen argued that her motion to reopen – although her fourth, 

submitted eleven years after her final order of removal but within 90 days of the Niz-Chavez

decision – should not be number- or time-barred under principles of equitable tolling.

Alternatively, Chen moved the BIA to reopen her immigration proceedings sua sponte, 

contending that Niz-Chavez was a compellingly fundamental and relevant change in the 

law that warrants reopening.
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The BIA denied both motions. It identified several grounds for denying Chen’s 

motion to reopen. First, it was number barred because it was her fourth motion, and she is 

permitted only one, see 8 U.S.C. § 1229a(c)(7)(A). Second, it was time-barred because it 

was filed more than 90 days after the April 2010 final order of removal, see id.

§ 1229a(c)(7)(C)(i) (“[T]he motion to reopen shall be filed within 90 days of the date of 

entry of a final administrative order of removal.”). Third, it was not subject to equitable 

tolling because this Court had reached the same result as Niz-Chavez over a year earlier, 

on February 26, 2020, in Guadalupe v. Attorney General, 951 F.3d 161, 166 (3d Cir. 2020), 

and Chen did not demonstrate why she did not move to reopen based on that decision. 

Furthermore, the BIA determined that even if her motion were timely, Chen would not be 

eligible for cancellation of removal because the April 2010 final order of removal was 

issued before she had ten years’ continuous presence. The BIA also denied Chen’s 

alternative motion for sua sponte reopening because she did not present an exceptional 

situation.

Through a timely petition challenging those rulings, Chen invoked this Court’s 

jurisdiction. See 8 U.S.C. § 1252(a)(1).

DISCUSSION

A. The BIA Did Not Abuse Its Discretion in Denying Chen’s

Motion to Reopen.

To succeed on abuse-of-discretion review of the denial of her motion to reopen, see 

Guo v. Ashcroft, 386 F.3d 556, 562 (3d Cir. 2004), Chen must prevail on four issues.

Three of those present novel questions for this Court. First, Chen’s petition hinges 

on the number bar for motions to reopen being subject to equitable tolling. See 8 U.S.C. 

§ 1229a(c)(7)(A) (“An alien may file one motion to reopen [immigration] proceedings.”). 

But this Court has not addressed that issue precedentially. See Luntungan v. Att’y Gen., 
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449 F.3d 551, 557 (3d Cir. 2006) (per curiam) (“We have not issued a precedential opinion 

deciding whether numerical limits on motions to reopen may be equitably tolled.”); cf. 

Jones v. Hendrix, 599 U.S. 465, 491 (2023) (declining to create an equitable exception to 

the numerical limitations on second or successive petitions under the Antiterrorism and 

Effective Death Penalty Act of 1996). Second, for Chen to avoid the denial of her motion 

on timeliness grounds, she must succeed on her theory of equitable tolling, which is 

premised on the change in law effectuated by Niz-Chavez. See 8 U.S.C. 

§ 1229a(c)(7)(C)(i). But this Court has not addressed the issue of whether a change in law 

can justify equitable tolling. Third, Chen must establish that the BIA erred in holding that 

a final order of removal terminates her continuous presence for purposes of cancellation of 

removal. Three other Circuits and the BIA itself have addressed that issue, but this Court 

has not. See Parada v. Garland, 48 F.4th 374, 377 (5th Cir. 2022) (per curiam) (holding 

that a final order of removal does not terminate continuous presence for cancellation-ofremoval purposes); Estrada-Cardona v. Garland, 44 F.4th 1275, 1286 (10th Cir. 2022)

(same); Quebrado Cantor v. Garland, 17 F.4th 869, 873 (9th Cir. 2021) (same); In re Chen,

28 I. & N. Dec. 676, 681 (B.I.A. 2023) (same).

The fourth issue, however, is not novel. Even supposing that Chen could prevail on 

the other three, her 2021 motion to reopen would still have to meet both elements of 

equitable tolling. For that to occur, Chen would have to show, inter alia, that she had been 

pursuing her rights diligently. See Holland v. Florida, 560 U.S. 631, 649 (2010). And that 

would require an explanation of why she did not move to reopen after this Court’s ruling 

in Guadalupe, which reached the same outcome as Niz-Chavez – but fourteen months 

earlier. Yet Chen offers no explanation. Thus, the BIA’s denial of Chen’s motion to reopen 

based on its conclusion that she failed to diligently pursue her rights was a sufficient reason 
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and not an abuse of discretion, rendering unnecessary any consideration of the other three 

issues of first impression. 

B. The Court Lacks Jurisdiction to Review the BIA’s Refusal 

to Sua Sponte Reopen Chen’s Removal Proceedings.

Chen challenges the BIA’s decision not to sua sponte reopen her proceedings. 

Because such a ruling is within the BIA’s sole discretion, see 8 C.F.R. § 1003.2(a), it is not 

generally subject to judicial review, see 8 U.S.C. § 1252(a)(2)(B); Pllumi v. Att’y Gen., 

642 F.3d 155, 159 (3d Cir. 2011) (holding that courts generally lack jurisdiction to review 

the BIA’s decision not to sua sponte reopen proceedings because such decisions “are 

committed to the unfettered discretion of the BIA”). However, this Court has recognized 

two limited circumstances in which a court has jurisdiction to review such orders – and 

Chen contends that both apply. 

The first exception to non-reviewability occurs when a discretionary ruling of the 

BIA allegedly rests on an incorrect legal premise. See Sang Goo Park v. Att’y Gen., 

846 F.3d 645, 651 (3d Cir. 2017) (citing Pllumi, 642 F.3d at 160). In that situation, this 

Court may review that legal question, and if the legal premise is indeed incorrect, remand 

the case to the agency to exercise its discretion with a correct understanding of the law. 

See id. Chen argues that the BIA erred by not considering the legal question of whether 

she had stated a prima facie case for cancellation of removal. But the BIA did not need to 

resolve that issue because as part of its analysis, it assumed that Chen was eligible for 

cancellation, and then, in the exercise of its discretion, concluded that she did not present 

an exceptional situation to warrant sua sponte reopening. See Patel v. Garland, 596 U.S. 

328, 332 (2022) (“If the judge decides that denial [of relief from removal] would be 

appropriate regardless of eligibility, the judge need not address eligibility at all.”).
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The second exception allows judicial review of the BIA’s deviation from its “settled 

course” if it “has limited its discretion via a policy, rule, settled course of adjudication, or 

by some other method.” Sang Goo Park, 846 F.3d at 653. Chen argues that her case fits 

within this exception because the BIA has a settled course of reopening proceedings that 

present exceptional circumstances, and that Niz-Chavez amounts to a fundamental change 

in law that justifies sua sponte reopening. But the assessment of whether any particular 

“change in law is sufficiently compelling that the extraordinary intervention of [the BIA’s] 

sua sponte authority is warranted,” remains a discretionary determination made by the BIA, 

In re G-D-, 22 I. & N. Dec. 1132, 1135 (B.I.A. 1999), and Chen offers no evidence that the 

BIA previously established a settled course of reopening with respect to either Niz-Chavez

or Guadalupe. Moreover, the BIA’s change-in-law policy applies when the outcome of the 

case “turn[s] on the cited change in law,” id., and nothing about Niz-Chavez or Guadalupe

compels cancellation of removal. At most, non-citizens who received defective NTAs may 

rely on those two cases to meet the continuous-presence requirement. But that is not 

outcome determinative: even when all of the prerequisites for cancellation of removal are 

satisfied, the BIA still has to exercise its discretion to determine whether to use one of the 

4,000 annual adjustment-of-status slots on a particular applicant. See 8 U.S.C. 

§ 1229b(e)(1). 

Thus, the BIA’s decision to deny the motion for sua sponte reopening was the result 

of its exercise of discretion, outside of either recognized exception, so this Court lacks 

jurisdiction to review that ruling. See id. § 1252(a)(2)(B); Pllumi, 642 F.3d at 159.

* * *

For these reasons, we will deny the petition with respect to the motion to reopen and 

dismiss the petition with respect to the motion for sua sponte reopening.