UNITED STATES COURT OF APPEALS 

FOR THE TENTH CIRCUIT 

_________________________________ 

LUZ DEL CARMEN 

MORONES-QUINONES, 

 Petitioner, 

v. 

LORETTA E. LYNCH, 

United States Attorney General, 

 Respondent. 

No. 15-9545 

(Petition for Review) 

_________________________________ 

ORDER AND JUDGMENT*

_________________________________ 

Before GORSUCH, McKAY, and BACHARACH, Circuit Judges. 

_________________________________ 

Ms. Luz del Carmen Morones-Quinones was ordered removed. She 

asked the Board of Immigration Appeals to reopen the removal proceedings 

sua sponte so that she could request adjustment of status.1

 The Board 

 

* The parties have not requested oral argument, and we do not believe 

oral argument would be helpful. As a result, we are deciding the appeal on 

the briefs. See Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1(G). 

 This order and judgment does not constitute binding precedent except 

under the doctrines of law of the case, res judicata, and collateral estoppel. 

But the order and judgment may be cited for its persuasive value under 

Fed. R. App. P. 32.1(a) and 10th Cir. R. 32.1(A). 

1

 Ms. Morones-Quinones asked for relief sua sponte because she had 

missed the 90-day deadline for filing a motion to reopen. See 8 U.S.C. 

§ 1229a(c)(7)(C). After the 90-day deadline expired, “the only avenue of 

FILED 

United States Court of Appeals

Tenth Circuit 

February 23, 2016

Elisabeth A. Shumaker 

Clerk of Court
2 

declined to reopen the removal proceedings. Rather than file a petition for 

review, she moved for reconsideration. This motion was denied, prompting 

Ms. Morones-Quinones to file a petition for review of the denial of 

reconsideration and to seek leave to proceed in forma pauperis. We dismiss 

the petition, but grant leave to proceed in forma pauperis. 

Petition for Review. We generally have jurisdiction to consider a 

motion to reconsider. See Mata v. Lynch, ___ U.S. ___, 135 S. Ct. 2150, 

2154 (2015). In the motion, however, Ms. Morones-Quinones relies on an 

alleged error by the Board in declining to sua sponte reopen the removal 

proceedings.2

 We lack jurisdiction to entertain that argument. Accordingly, 

we dismiss the petition for review. 

Ms. Morones-Quinones acknowledges that we have held in 

precedential opinions that we lack jurisdiction to consider whether the 

Board erred in declining to reopen the proceedings sua sponte. See 

Infanzon v. Ashcroft, 386 F.3d 1359, 1361 (10th Cir. 2004); Belay-Gebru v. 

INS, 327 F.3d 998, 1001 (10th Cir. 2003). But Ms. Morones-Quinones 

argues that the Supreme Court overruled these precedents in Kucana v. 

Holder, 558 U.S. 233 (2010). We disagree. 

 

relief is for the [Board of Immigration Appeals] to reopen proceedings sua 

sponte.” Gor v. Holder, 607 F.3d 180, 198 (6th Cir. 2010); see also 

8 C.F.R. § 1003.2(a) (stating that the Board of Immigration Appeals can 

reopen a case on its own at any time). 

2

 In the motion, she also relies on a change in the law after the denial 

of her motion to reopen. But she does not raise this argument in our court. 
3 

Kucana addressed 8 U.S.C. § 1252(a)(2)(B), which precludes judicial 

review of discretionary denials of relief. The Kucana Court held that 

§ 1252(a)(2)(B) does not deprive the courts of jurisdiction to review the 

Board’s decisions on motions to reopen because those decisions are 

discretionary by regulation, not statute. 558 U.S. at 237, 253. But in 

Kucana, the Supreme Court noted that its issue did not involve sua sponte 

reopening. Id. at 251 n.18. On that issue, the Court stated that it 

“express[ed] no opinion on whether federal courts may review the Board’s 

decision not to reopen removal proceedings sua sponte.” Id.; see also Mata 

v. Lynch, ___ U.S. ___, 135 S. Ct. 2150, 2155 (2015) (noting that the 

question was reserved in Kucana and assuming arguendo that the court of 

appeals had correctly held that it lacked authority to review the Board’s 

refusal to reopen sua sponte). 

Because the Kucana Court expressed no opinion on our issue, 

we are bound by our precedents, which hold that we lack jurisdiction 

to consider whether the Board erred when declining to reopen 

removal proceedings sua sponte. See In re Smith, 10 F.3d 723, 724 

(10th Cir. 1993) (per curiam) (“We are bound by the precedent of 

prior panels absent en banc reconsideration or a superseding contrary 

decision by the Supreme Court.”). Under these precedents, we lack 

jurisdiction to consider whether the Board should have sua sponte 

reopened Ms. Morones-Quinones’ removal proceedings. See Infanzon 
4 

v. Ashcroft, 386 F.3d 1359, 1361 (10th Cir. 2004); Belay-Gebru v. 

INS, 327 F.3d 998, 1001 (10th Cir. 2003). Thus, we dismiss the 

petition for review. 

Motion for Leave to Proceed in Forma Pauperis. Because 

Ms. Morones-Quinones cannot afford to prepay the filing fee, we grant her 

motion for leave to proceed in forma pauperis. With this status, Ms. 

Morones-Quinones is relieved of her obligation to prepay the filing fee. 

See 28 U.S.C. § 1915(a)(1). But she remains obligated to pay the filing fee. 

Brown v. Eppler, 725 F.3d 1221, 1230-31 (10th Cir. 2013). 

 Entered for the Court 

 Robert E. Bacharach 

 Circuit Judge