United States Court of Appeals

For the Eighth Circuit 

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No. 20-3426

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Lizbeth Salcido Mar

 Petitioner

v.

Merrick B. Garland, Attorney General of the United States

 Respondent

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Petition for Review of an Order of the

Board of Immigration Appeals

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Submitted: October 20, 2021

Filed: February 28, 2022 

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Before GRUENDER, ERICKSON, and STRAS, Circuit Judges. 

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ERICKSON, Circuit Judge.

Lizbeth Salcido Mar, a native and citizen of Mexico, entered the United States 

in 1993 with a B2 visitor visa. On May 18, 2012, the government commenced 

removal proceedings, through the filing of a Notice to Appear, on the ground that 

she was not in possession of a valid visa or other entry document. Salcido Mar filed 

applications for asylum and cancellation of removal, but ultimately proceeded only 

with her application for cancellation of removal. In April 2017, Salcido Mar’s
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application was denied. The Board of Immigration Appeals (“BIA” or “Board”) 

entered a final administrative decision on January 11, 2018, when it dismissed 

Salcido Mar’s appeal of the Immigration Judge’s decision denying her application 

for cancellation of removal. Salcido Mar was granted permission to voluntarily 

depart from the United States, but she has not done so. 

On October 13, 2017, Salcido Mar gave birth to a third child, a daughter who 

was born healthy but who began to develop asthma-like symptoms at age four 

months and was diagnosed with Respiratory Syncytial Virus. In July 2018, Salcido 

Mar filed a motion to reopen and stay of removal based on the medical records for 

her youngest child, who was born after the conclusion of the removal proceedings. 

In April 2019, the BIA denied her request to reopen, finding Salcido Mar did not 

provide an adequate explanation as to why she did not timely file the motion within 

90 days of its final decision. See 8 U.S.C. § 1229a(c)(7); 8 C.F.R. § 1003.2(c)(2). 

The BIA further found that no hearing was warranted because the new evidence did 

not demonstrate exceptional and extremely unusual hardship or an exceptional 

situation warranting sua sponte reopening.

On March 7, 2019 (about a month before the BIA denied her initial motion to 

reopen), Salcido Mar gave birth to a fourth child. When the newborn was unable to 

stool on her own, Salcido Mar took her to a specialist who discovered that a section 

of the child’s bowel appeared paralyzed. It is suspected that the child may have 

Hirschsprung’s disease.

One year later, on March 9, 2020, Salcido Mar filed a second motion to 

reopen, asserting new evidence regarding her youngest child that was unavailable at 

the time of the merits hearing. While the introduction section of the motion 

summarily requests “that the numerical and time limits be equitably tolled in light 

of the serious medical condition her daughter is suffering,” the only meaningful 

argument in the motion pertains to the BIA’s authority to reopen the case under its 

sua sponte authority. See Admin. R. 12 (“Based on the above statute and existing 

case law, the Board has the power to sua sponte open a case at any time if they feel 
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it is warranted.”); id. at 14 (“The Respondent again recognizes that the sua sponte

power of this Court is not taken lightly, however, the facts of this matter warrant a 

reopening.”). Contrast this to her first motion, where she specifically requested the 

90-day deadline be tolled to allow her to present new material evidence. Admin. R. 

81.

On October 29, 2020, the BIA, noting that the second motion to reopen was 

both time-barred and numerically-barred, declined to exercise its sua sponte

authority to reopen and denied the motion. The BIA construed Salcido Mar’s motion 

solely as a request to reopen sua sponte. Admin. R. 03 (reciting the motion as “she 

asks this Board to reopen sua sponte”). This appeal followed.

Generally, “we lack jurisdiction to review the Board’s refusal to sua sponte

reopen the proceedings” because it is a purely discretionary decision. Pinos 

Gonzalez v. Barr, 929 F.3d 595, 598 (8th Cir. 2019); see Tamenut v. Mukasey, 521 

F.3d 1000, 1004 (8th Cir. 2008) (en banc) (per curiam) (“BIA’s decision whether to 

reopen proceedings on its own motion is committed to agency discretion by law.”). 

“[A]ll we can do is consider ‘colorable’ constitutional claims” when reviewing the 

BIA’s refusal to sua sponte reopen removal proceedings. Chong Toua Vue v. Barr, 

953 F.3d 1054, 1057 (8th Cir. 2020) (citing Tamenut, 521 F.3d at 1003-05). 

Equitable tolling, even if Salcido Mar raised the issue, does not fall into this narrow 

exception. Villanueva v. Holder, 615 F.3d 913, 916 (8th Cir. 2010) (determining 

the Court lacks jurisdiction to review equitable tolling arguments that were not 

exhausted in the administrative proceedings below).

We dismiss the petition for lack of jurisdiction.

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