NOT PRECEDENTIAL

UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

___________

Nos. 20-3052 & 21-2805

___________

VICTOR VIKTOROVICH SHNEGELBERGER,

Petitioner

v.

ATTORNEY GENERAL OF THE UNITED STATES OF AMERICA

____________________________________

On Petition for Review of an Order of the

Board of Immigration Appeals

(Agency No. A087-297-628)

Immigration Judge: Kuyomars Golparvar

____________________________________

Submitted Pursuant to Third Circuit LAR 34.1(a)

June 21, 2022

Before: MCKEE, SHWARTZ and MATEY, Circuit Judges

(Filed: July 29, 2022)

___________

OPINION*

___________

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

constitute binding precedent.
2

PER CURIAM

With the two consolidated petitions for review before us Victor Shnegelberger 

challenges agency immigration decisions denying his motion to reopen removal 

proceedings and denying his motion for reconsideration of the adverse reopening ruling. 

For the reasons expressed below, we lack jurisdiction to consider, and will thus dismiss, 

all of the first petition and some of the second. What remains of the latter will be denied. 

I.

Shnegelberger is a citizen of Tajikistan who entered the United States on a socalled ‘tourist visa’ and became a lawful permanent resident. Thereafter, a Pennsylvania 

conviction for drug possession put Shnegelberger’s status in the United States in 

jeopardy: The Government charged him as removable under 8 U.S.C. § 1227(a)(2)(B)(i) 

(providing that non-citizens convicted of almost all offenses “relating to a controlled 

substance” are “deportable”). Through counsel, Shnegelberger conceded the charge.

The IJ denied Shnegelberger’s applications for relief; the Board of Immigration 

Appeals (BIA) affirmed; and on review we declined to disturb the agency’s final order of 

removal. See Shnegelberger v. Att’y Gen., 742 F. App’x 685, 690 (3d Cir. 2018). 

Afterward, the BIA denied Shnegelberger’s motion to reopen. A subsequently filed 

petition for review was dismissed for lack of prosecution.

By then, Shnegelberger had already filed with the BIA a second motion to reopen. 

In it, Shnegelberger argued that he was no longer removable based on Hillocks v. 

Attorney General, 934 F.3d 332 (3d Cir. 2019), in which we acknowledged the directive 

from Mellouli v. Lynch, 575 U.S. 798 (2015), that the categorical approach be used to 
3

answer “the question of whether a particular state offense relates to a controlled 

substance” for purposes of § 1227(a)(2)(B)(i). Hillocks, 934 F.3d at 345. Prior to 

Mellouli, this Court examined the relevant “conviction documents to determine whether a 

federally controlled substance was involved ‘in the same way as the existence of the 

conviction itself is normally established.’” Id. (quoting Rojas v. Att’y Gen., 728 F.3d 

203, 216 (3d Cir. 2013) (en banc)). Mellouli, we explained in Hillocks, “abrogated 

Rojas’s test.” Id.

The BIA denied the second motion to reopen. It determined that the motion was 

time- and number-barred.1 The BIA recognized that it could, under agency precedent, 

exercise its discretion to reopen proceedings sua sponte based on a fundamental shift in 

the law. But it declined to do so after determining that Hillocks did not have the requisite 

significance. Shnegelberger filed a pro se petition for review, which was docketed at C.A. 

No. 20-3052. The Government responded to the petition with a motion to dismiss it for 

lack of jurisdiction. A ruling on the Government’s motion was deferred until today.

Meanwhile, Shnegelberger asked the BIA to reconsider its decision denying his 

second motion to reopen, arguing that the agency failed to appreciate the significance of 

Hillocks. Shnegelberger contended in the alternative that, if Mellouli had dictated his 

removability pre-Hillocks, then counsel before the IJ was ineffective in facilitating a 

concession to the removal charge (because, the argument went, Shnegelberger’s drug 

1 See 8 U.S.C. § 1229a(c)(7)(A) (providing that in general “[a]n alien may file one 

motion to reopen proceedings”); 8 U.S.C. § 1229a(c)(7)(C)(i) (providing that in general a 

“motion to reopen shall be filed within 90 days of the date of entry of a final 

administrative order of removal”); see also 8 C.F.R. § 1003.2(c)(2).
4

conviction did not satisfy § 1227(a)(2)(B)(i) under the categorical approach).

The BIA denied reconsideration, largely relying on the reasoning of its prior 

decision. The BIA also determined that, insofar as Shnegelberger’s motion could be 

construed as one seeking reopening based on ineffective assistance of counsel, the motion 

was time- and number-barred and, further, did not present a viable basis for equitable 

tolling or sua sponte reopening. The BIA determined, in particular, that Shnegelberger 

was properly found removable, and that he thus failed to show that he was prejudiced by 

counsel’s allegedly deficient performance.

Shnegelberger filed another pro se petition for review, which was docketed at 21-

2805. His two petitions were consolidated for disposition. 

II.

We first consider our jurisdiction. Under 8 U.S.C. § 1252(a)(1), a court of appeals 

may exercise jurisdiction over final orders of removal, which category includes agency 

decisions denying reopening or reconsideration. See Kucana v. Holder, 558 U.S. 233, 242 

(2010); Vakker v. Att’y Gen., 519 F.3d 143, 147 (3d Cir. 2008). Two limitations on that 

jurisdiction are implicated here. 

The first limitation is statutory. Under § 1252(a)(2)(C), “no court shall have 

jurisdiction to review any final order of removal against an alien who is removable by 

reason of having committed a criminal offense covered in” § 1227(a)(2)(B), among other 

provisions. At the same time, § 1252(a)(2)(C) preserves “review of constitutional claims 

or questions of law.” 8 U.S.C. § 1252(a)(2)(D). 
5

The second limitation is doctrinal. When a non-citizen seeks review of a BIA 

decision declining to reopen removal proceedings sua sponte, we may exercise 

jurisdiction only when (1) the BIA relies on an incorrect legal premise in its analysis, or 

(2) the BIA has constrained itself through rule or “settled course of adjudication.” Park v.

Att’y Gen., 846 F.3d 645, 651-52 (3d Cir. 2017). Those two scenarios present exceptions 

to the rule that, “[b]ecause 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.” Calle-Vujiles v. Ashcroft, 320 

F.3d 472, 475 (3d Cir. 2003).

III.

As a preliminary matter, we have previously determined that any review of the 

removal order in Shnegelberger’s case would be circumscribed by §§ 1252(a)(2)(C)-

(D)—leaving only colorable constitutional claims or questions of law for consideration—

as a result of his commission of an offense covered in § 1227(a)(2)(B)(i). See

Shnegelberger, 742 F. App’x at 687-90. The colorability standard does not require that a 

petitioner’s claim be meritorious. Instead, “[t]o determine whether a claim is colorable, 

we ask whether ‘it is immaterial and made solely for the purpose of obtaining jurisdiction 

or is wholly insubstantial and frivolous.’” Pareja v. Att’y Gen., 615 F.3d 180, 186 (3d 

Cir. 2010) (citation omitted).

In the briefing, Shnegelberger puts forth a colorable argument that the BIA 

misperceived the import of Hillocks in rejecting that case as a basis for reopening 
6

removal proceedings sua sponte.

2 Relatedly, Shnegelberger puts forth colorable 

arguments that this Court may exercise jurisdiction to review the BIA’s reopening 

decision under Park. For those reasons, we reject the Government’s argument for 

dismissal under § 1252(a)(2)(C). 

However, while the statutory limitation on jurisdiction does not bar our review in 

C.A. No. 20-3052, the doctrinal limitation does. In particular, we agree with the 

Government that the BIA did not apply a faulty legal premise. To recap the BIA’s ruling: 

It assessed that Hillocks represents little more than an application of Mellouli—which 

was decided fifteen months before the notice to appear even issued in Shnegelberger’s 

case—and that Hillocks thus does not qualify as a “fundamental” change in the pertinent 

legal landscape for purposes of reopening under In re G-D-, 22 I. & N. Dec. 1132, 1135

(BIA 1999) (en banc) (holding that in order for a change in the law to potentially qualify 

as the requisite “exceptional” situation that could merit sua sponte reopening, the change 

must be “fundamental” in nature and not merely “an incremental development in the state 

of the law”). The BIA was right. Mellouli required that the categorical approach apply 

throughout Shnegelberger’s removal proceedings, even if it was not until Hillocks that 

this Court expressed Mellouli’s full effect on prior jurisprudence, Rojas most 

prominently. After Mellouli, the Rojas test was no longer viable. So, whereas Mellouli

2 Shnegelberger does not dispute that his second motion to reopen was time- and numberbarred. That issue is thus forfeited. See In re: Asbestos Prods. Liab. Litig. (No. VI), 873 

F.3d 232, 237 (3d Cir. 2017).
7

might qualify as a “fundamental” change in the law, Hillocks does not. Jurisdiction under 

the “incorrect legal premise” exception, Park, 846 F.3d at 651, is thus lacking.

We have also considered whether Shnegelberger’s petition at C.A. No. 20-3052 

implicates the “settled course” exception. Id. at 652-53. Again, G-D- held that sua sponte 

reopening may be appropriate when the BIA is presented with a “fundamental change in

the law.” 22 I. & N. Dec. at 1135; see also Bonilla v. Lynch, 840 F.3d 575, 585 (9th Cir. 

2016).

We assume, for the sake of Shnegelberger’s argument, that at the time of its 

decision denying the second motion to reopen the BIA had “meaningfully limited its 

discretion,” Park, 846 F.3d at 656, such that it would consider whether to reopen 

proceedings sua sponte when a non-citizen had diligently discovered and presented a 

“fundamental change in the law” that, if applied, would be dispositive of the noncitizen’s defense to removal.3

If the BIA in this case were to have exercised its discretion 

3 See, e.g., In re Perez, 2019 WL 3857793, at *1 (BIA May 17, 2019) (concluding that it 

was “appropriate to consider the motion [to reopen] sua sponte” under G-D-, because the 

motion relied on, and was promptly filed after, Pereira v. Sessions, 138 S. Ct. 2105 

(2018)); In re Gonzalez, 2019 WL 3776125, at *1-2 (BIA May 14, 2019) (reopening sua 

sponte and terminating removal proceedings under G-D- because “in light of the 

intervening Supreme Court precedent [of Sessions v. Dimaya, 138 S. Ct. 1204 (2018),] 

the respondent is not removable on the sole ground of removability charged in the Notice 

to Appear”); In re Navarro, 2019 WL 3776124, at *1 (BIA May 13, 2019) (same); In re

Savinon, 2019 WL 3776118, at *1-2 (BIA May 3, 2019) (concluding that “the respondent 

has established exceptional circumstances based on a fundamental change in law” under 

G-D-, as he was no longer removable under intervening circuit precedent); In re

Escajeda-Hernandez, 2019 WL 2613142, at *2 (BIA Mar. 25, 2019) (reopening under GD- because, “[i]n the controlling jurisdiction, it appears that the respondent’s 2001 

burglary conviction . . . no longer qualifies as an aggravated felony” given developments 

in the case law).
8

under those circumstances, we could then review for abuse the action the BIA took 

pursuant to that discretion. Cf. id. at 653.4

But that is not how things unfolded here. Rather, the BIA declined to engage in 

any exercise of its sua sponte reopening discretion because Shnegelberger failed to satisfy 

a condition precedent to application of the G-D- framework: that the change in law be 

“fundamental.” Accordingly, the second Park exception does not apply. 

For those reasons, we grant the Government’s motion to dismiss the petition for 

review at C.A. No. 20-3052.

IV.

Up next is the petition for review at C.A. No. 21-2805, which concerns the BIA’s 

denial of Shnegelberger’s motion for reconsideration. Such a decision, like the BIA’s 

denial a motion to reopen, is reviewed for abuse of discretion. See Pllumi v. Att’y Gen., 

642 F.3d 155, 158 (3d Cir. 2011). 

At its core, Shnegelberger’s argument for reconsideration has been that, up until 

Hillocks, Rojas governed the BIA’s approach (in cases emanating from this Circuit’s 

catchment) to assessing whether a non-citizen’s criminal conviction “relat[es] to a 

controlled substance” under § 1227(a)(2)(B)(i). Shnegelberger is incorrect. Mellouli

controlled at all times relevant. See Karns v. Shanahan, 879 F.3d 504, 514-15 (3d Cir. 

4 Notably, “the presence of an exceptional situation” under G-D- “does not compel [the 

BIA] to act; the BIA may still decide against reopening.” Park, 846 F.3d at 650; cf. Lona 

v. Barr, 958 F.3d 1225, 1235 (9th Cir. 2020); Barajas-Salinas v. Holder, 760 F.3d 905, 

908 (8th Cir. 2014).
9

2018) (“Our respect for the uniformity of decisions within this Court therefore must 

succumb when a prior holding of our Court—even an en banc decision—conflicts with a 

subsequent Supreme Court holding.”); In re Assaad, 23 I. & N. Dec. 553, 560 n.9 (BIA 

2003) (“Supreme Court law is paramount and the Board, along with every other judicial 

or quasi-judicial tribunal in this country, is mandated to follow it. Were we convinced of 

a conflict between the Supreme Court’s pronouncements and circuit court precedents, we 

would follow Supreme Court law without question.”).

Accordingly, the BIA did not abuse its discretion insofar as it denied 

reconsideration of its earlier ruling.

We now turn to the other piece of the BIA’s decision. As noted earlier in this 

opinion, the BIA construed Shnegelberger’s motion for reconsideration as seeking, in 

part, reopening to advance a claim of ineffective assistance of counsel. The BIA 

considered and rejected the position that Shnegelberger’s ineffective-assistance claim 

provided either a basis for equitable tolling of the procedural limitations for motions to 

reopen, or instead a basis for sua sponte reopening.

Shnegelberger’s ineffective-assistance claim fails because it is deficient at the 

prejudice prong, for substantially the reasons given by the BIA in its decision. Cf. Fadiga 

v. Att’y Gen., 488 F.3d 142, 159 (3d Cir. 2007) (explaining that “an alien claiming 

ineffective assistance of counsel in removal proceedings must, in addition to showing that 

his lawyer committed unprofessional errors, show that there was a ‘reasonable likelihood 

that the result would have been different if the error[s] . . . had not occurred.’”) (citation 
10

omitted).5 We thus conclude that the BIA did not abuse its discretion when it declined to 

equitably toll the procedural limits on motions to reopen. To that extent, and to the extent 

(described above) that the BIA did not abuse its discretion in denying reconsideration, the 

petition for review at C.A. No. 21-2805 will be denied.

As for the BIA’s refusal to reopen sua sponte based on ineffective assistance of 

counsel, we lack jurisdiction to review that ruling because it is not tied to either a flawed 

legal premise or a settled course of adjudication. Cf. Park, 846 F.3d at 651-52. The 

petition for review at C.A. No. 21-2805 will thus be dismissed in part.

VI.

For the reasons given above: The Government’s motion to dismiss 

Shnegelberger’s petition for review at C.A. 20-3052 is granted and that petition will be 

dismissed; and Shnegelberger’s petition for review at C.A. No. 21-2805 will be denied in 

part and dismissed in part. 

5 Shnegelberger does not dispute that, insofar as his motion for reconsideration sought 

reopening, the motion was time- and number-barred. While the time-bar may indeed be 

equitably tolled, see Mahmood v. Gonzales, 427 F.3d 248, 251 (3d Cir. 2005), “[w]e 

have not issued a precedential opinion deciding whether numerical limits on motions to 

reopen” are also amenable to such treatment, Luntungan v. Att’y Gen., 449 F.3d 551, 

557 (3d Cir. 2006). We need not address that issue here because Shnegelberger has failed 

to present a viable basis for equitable tolling even assuming its availability.