1 Wang’s arrest did not result in the prosecution of criminal

charges against him.

IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

_____________________

No. 00-60291

_____________________

KUANG-TE WANG,

Petitioner,

v.

JOHN ASHCROFT, U.S. Attorney General,

Respondent.

---------------------------------

Petition for Review of an Order of

the Board of Immigration Appeals

---------------------------------

July 31, 2001

Before HIGGINBOTHAM, DAVIS and BENAVIDES, Circuit Judges.

BENAVIDES, Circuit Judge:

The petitioner, Kuang-Te Wang, a native of Taiwan, entered

the United States on January 18, 1985 as a nonimmigrant visitor

authorized to remain for a period not to exceed one year. 

Petitioner’s wife, Yu-Fen Wang, entered the United States

approximately one month later in February 1985. Wang and his

wife remained illegally in the United States beyond the

expiration of the one year period. In 1989, federal agents,

without a warrant, entered Wang’s home and arrested him on

suspicion of transporting illegal aliens.1 During the course of
2

the arrest, Wang’s status as an illegal alien was revealed. 

Consequently, on May 24, 1989, the Immigration and Naturalization

Service (INS) issued an Order to Show Cause, charging Wang as

being deportable pursuant to § 241(a)(2) of the Immigration and

Nationality Act (INA), 8 U.S.C. § 1251(a)(2), in that he remained

in the United States beyond the time authorized.

At Wang’s deportation hearing, his counsel filed a motion to

suppress the evidence submitted by the INS to establish the

deportability charge. The motion alleged that the evidence was

inadmissible as the fruits of an illegal search. The immigration

judge denied the motion to suppress and found Wang deportable. 

Wang appealed and the Board of Immigration Appeals (“BIA” or “the

Board”) affirmed. Wang did not petition this Court to review the

Board’s decision. Instead, on August 23, 1993, Wang timely filed

a motion to reopen his deportation proceedings before the BIA,

arguing that he was eligible for suspension of deportation under

INA § 244(a), as he had been in continuous physical presence in

the United States for seven years. During the pendency of this

motion two significant events occurred. First, a new regulation

was approved by the Attorney General, effective July 1, 1996,

providing that:

(c) Motion to reopen.

(2) Except as provided in paragraph (c)(3) of this section,

a party may file only one motion to reopen deportation or

exclusion proceedings (whether before the Board or the

Immigration Judge) and that motion must be filed no later

than 90 days after the date on which the final
3

administrative decision was rendered in the proceeding

sought to be reopened, or on or before September 30, 1996,

whichever is later.

8 C.F.R. § 3.2(c)(2). Second, in 1997, Wang became eligible to

apply for an “adjustment of status.” Wang’s wife was sponsored

by her employer for alien employment certification. She received

an approved certification issued by the U.S. Department of Labor

and an approved immigrant visa petition pursuant to INA § 203(b). 

Approval of the labor certification and visa petition enabled

Wang’s wife to apply for lawful permanent resident status under

the terms of § 245(i) of the INA, a process called “adjustment of

status.” 8 U.S.C. § 1255(i). An application for adjustment of

status allows the applicant to apply along with his or her spouse

and minor children. INA § 203(d), 8 U.S.C. § 1153(d). INS

regulations, however, required Wang to file his application in

relation to his ongoing deportation proceedings. 8 C.F.R. §

245.2(a).

Wang thus filed a “Motion to Remand” with the BIA in October

1997 asserting his eligibility for an adjustment of status. The

BIA rendered a decision on March 21, 2000 – six and a half years

after his original filing – denying Wang relief. In its order,

the BIA rejected Wang’s request for suspension of deportation in

his August 1993 motion to reopen. Wang does not challenge this

ruling. The Board then construed his October 1997 “Motion to

Remand” as a motion to reopen – a motion to reopen filed
4

subsequent to, and distinct from, his August 1993 motion to

reopen. The BIA found the motion untimely under § 3.2(c)(2) and

concluded that it was therefore without jurisdiction to consider

the motion. Wang now petitions this Court for review of the

Board’s denial of his October 1997 motion as untimely. Wang

argues that his motion should have been construed as a motion to

remand or, alternatively, as a supplement to his August 1993

motion to reopen. Further, Wang maintains that even if the

October 1997 motion was properly construed as a separate and

untimely motion to reopen, the Board abused its discretion by not

exercising its authority to reopen his deportation proceedings

upon its own motion pursuant to 8 C.F.R. § 3.2(a).

Because Wang’s challenge involves the Board’s interpretation

and application of its own regulations, we accord the Board’s

decision significant deference. Citizens for Fair Utility

Regulation v. United States Nuclear Regulatory Comm’n, 898 F.2d

51, 54 (5th Cir. 1990). We will give the agency’s interpretation

of its own rules controlling weight “unless it is plainly

erroneous or inconsistent with the regulation.” Wright v. United

States, 164 F.3d 267, 269 (5th Cir. 1999). Cognizant of the

limited nature of our review, we examine Wang’s challenges to the

Board’s order.

Wang first contends that his October 1997 motion should have
5

been treated as a motion to remand rather than a motion to

reopen. Wang’s contention is precipitated by the fact that a

motion to remand, unlike a motion to reopen, is not subject to

any specific time or numeric filing requirements. Wang, however,

offers no legal or practical reason, other than the self-applied

label at filing, as to why his October 1997 motion should be

treated as a motion to remand rather than a motion to reopen.

Three distinct motions are available to aliens to challenge

an adverse agency ruling – a motion to reopen, a motion to

reconsider, and a motion to remand. Motions to reopen and

motions to reconsider are governed by 8 C.F.R. §§ 3.2 and 3.8. 

“A motion to reopen seeks fresh consideration on the basis of

newly discovered facts or a change in circumstances since the

hearing, or solicits an opportunity to apply for discretionary

relief.” 1 Charles Gordon, Stanley Mailman, & Stephen Yale Loehr,

IMMIGRATION LAW AND PROCEDURE § 3.05[7][a] (Matthew Bender rev. ed.

2001). A motion to remand similarly seeks consideration of new

facts or changed circumstances. Motions to remand, although not

expressly provided for by the INA or INS regulations, are

commonly directed to the Board and are an accepted part of the

appellate process. Matter of Coelho, 20 I. & N. Dec. 464, 471

(BIA 1992). The Board’s recent decision in In re L-V-K, Int.

Dec. 3409, 1999 WL 607159 (BIA 1999), however, explained the

limited role of a motion to remand and its relation to a motion
2 To the extent relevant, Wang’s argument that he should not

be bound by In re L-V-K because it was decided after the filing of

his October 1997 motion is unavailing. Even before Wang filed his

original motion in 1993, the BIA had announced the rule that “where

a motion to remand is really in the nature of a motion to reopen or

a motion to reconsider, it must comply with the substantive

requirements for such motions.” Matter of Coelho, 20 I. & N. Dec.

464, 471 (BIA 1992).

6

to reopen: “unless and until such time as the proceedings are

reopened, the Board has no jurisdiction to entertain a motion

remand, which is in substance a motion to reopen, because the 90-

day limit for filing a motion to reopen has expired.”2 In re LV-K, Int. Dec. 3409, 1999 WL 607159 (BIA 1999). A motion to

remand thus allows the Board, under appropriate circumstances, to

remand an open case to the immigration judge for further

proceedings. See, e.g., In re Fructoso Luviano-Rodriguez, 21 I.

& N. 235, 1996 WL 136874 (BIA 1996); Matter of Tee, 20 I. & N.

949, 949, 1995 WL 28497 (BIA 1995).

In the present case, the decision of the immigration judge

matured into a final order – i.e., the case closed – when Wang

elected not to appeal the BIA’s affirmance of his deportation

order to this Court. 8 C.F.R. § 3.39. In order to return the

matter to the immigration judge for fresh consideration of Wang’s

changed circumstances, the Board would need to first reopen

Wang’s case. Thus, the Board properly construed his motion as a

motion to reopen, rather than a motion to remand.

Wang next argues that his October 1997 motion should have
3 3.2 Reopening or reconsideration before the Board of

Immigration Appeals.

(a) General. The Board may at any time reopen or reconsider on

its own motion any case in which it has rendered a decision. A

request to reopen or reconsider any case in which a decision has

been made by the Board, which request is made by the Service, or by

the party affected by the decision, must be in the form of a

written motion to the Board. The decision to grant or deny a

motion to reopen or reconsider is within the discretion of the

7

been considered a supplement to his original August 1993 motion

to reopen. While this argument is certainly plausible,

ultimately we cannot find unreasonable the Board’s conclusion

that the October 1997 motion was a separate and thus untimely

motion. Several facts support the Board’s conclusion that it was

a separate motion. First, Wang’s motion was not styled as a

supplement nor contained any other indication that it was

intended as a supplement to a prior motion, rather than a

separate motion for relief. Second, in correspondence, counsel

for Wang referred to the motion to remand as a separate motion,

stating that “[c]urrently, the above-mentioned Motion to Remand

and a Motion to Reopen, filed by Respondent’s previous attorney,

remain pending before the Board. Please advise as to the status

of these Motions if possible.” Given these facts, we cannot find

that the Board’s construction of the October 1997 motion as a

separate motion to reopen was plainly erroneous.

Finally, Wang contends that the BIA abused its discretion by

not exercising its power under § 3.2(a) to reopen his case upon

its own motion.3 The Government responds that Wang’s failure to
Board, subject to the restrictions of this section. The Board has

discretion to deny a motion to reopen even if the party moving has

made out a prima facie case for relief.

8 C.F.R. § 3.2(a).

8

exhaust his administrative remedies, by not asserting before the

BIA that it invoke this authority, denies our Court jurisdiction

to review his claim. Additionally, the Government asserts that

we are without jurisdiction to review the claim because the

Board’s ability to reopen cases on its own motion is within its

unfettered discretion and not subject to review for abuse. 

Finally, that even if we may review such Board action, the Board

did not abuse its discretion in refusing to act upon its own

motion.

Necessarily, the first question we must answer is whether

Wang failed to exhaust his administrative remedies by not

requesting the BIA to exercise its authority under § 3.2(a). 

Section 106(c) of the INA, applicable to Wang, states that unless

an alien exhausts his available administrative remedies, the

deportation order “shall not be reviewed by any court.” 8 U.S.C.

§ 1105a(c). Because it is statutorily mandated, an alien’s

failure to exhaust his administrative remedies serves as a

jurisdictional bar to our consideration of the issue. Townsend

v. INS, 799 F.2d 179, 181 (5th Cir. 1986). An alien fails to

exhaust his administrative remedies with respect to an issue when

the issue is not raised in the first instance before the BIA –
9

either on direct appeal or in a motion to reopen. Goonsuwan v.

Ashcroft, 252 F.3d 383, 388-89 (5th Cir. 2001).

While this rule is clear, its application to the facts of

this case is more complicated. Section 3.2(a) grants the Board

power to act sua sponte to reopen a case. In re G-D-, Int. Dec.

3418, 1999 WL 1072237, (BIA 1999). Initially, it seems

contradictory to require a petitioner to raise an issue upon

which the Board acts sua sponte, since the Board, by definition,

is acting “on its own motion.” In this regard, Wang argues

further that since the Board is aware of its authority under §

3.2(a), its failure to act implicitly rejects the invocation of

that authority and we have jurisdiction to review the decision

for abuse of discretion. We disagree. Courts and agencies have

a full panoply of powers which they may invoke sua sponte. While

an agency may act upon its own motion, a party that seeks to

challenge on appeal the failure to act sua sponte must

sufficiently raise the issue in the first instance before the

agency. See Luis v. INS, 196 F.3d 36, 40 (1st Cir. 1999)

(finding that an alien failed to exhaust her administrative

remedies when she did not request the Board to invoke its sua

sponte authority in her motions to reopen). In the present case,

Wang did not argue before the BIA in his October 1997 motion that

“exceptional circumstances” warranted the exercise of their sua
4 The Board’s decisions indicate that an untimely motion to

reopen will be considered only if there are exceptional

circumstances. Matter of J-J-, Int. Dec. 3323 (BIA 1997); see also

Motions and Appeals in Immigration Proceedings, 61 Fed. Reg.

18,900, 18,902 (1996) (“(S)ection 3.2(a) of the rule provides a

mechanism that allows the Board to reopen or reconsider sua sponte

and provides a procedural vehicle for the consideration of cases

with exceptional circumstances.”). A petitioner seeking to have

the BIA act upon its own motion should therefore accompany an

untimely motion with an explanation of the exceptional

circumstances that justify reopening the case. If the Board then

finds that the petitioner’s claim does not satisfy its “exceptional

circumstances” standard, this Court could then decide its

jurisdiction to review the decision for an abuse of discretion. We

are not faced with such a situation here.

10

sponte power under § 3.2(a).4 We are therefore without

jurisdiction to consider the issue on appeal.

Having reviewed and rejected each of Wang’s attacks on the

decision of the Board, the petition for review is DENIED.