2010 Decisions

Opinions of the United

States Court of Appeals

for the Third Circuit

10-7-2010

Hong Fang v. Atty Gen USA

Precedential or Non-Precedential: Non-Precedential

Docket No. 08-3729

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Recommended Citation

"Hong Fang v. Atty Gen USA" (2010). 2010 Decisions. Paper 477.

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NOT PRECEDENTIAL

UNITED STATES COURT OF APPEALS 

FOR THE THIRD CIRCUIT 

 ___________ 

 No. 08-3729 

 ___________ 

 HONG FANG, 

Petitioner 

 v. 

ATTORNEY GENERAL OF THE UNITED STATES 

 ____________________________________ 

On Petition for Review of an Order of the 

Board of Immigration Appeals 

(Agency No. A78-066-348) 

Immigration Judge: Honorable Craig De Bernardis 

 ____________________________________ 

Submitted Pursuant to Third Circuit LAR 34.1(a) 

September 16, 2010 

 Before: RENDELL, HARDIMAN AND ALDISERT, Circuit Judges

(Opinion filed October 7, 2010 

 ___________ 

 OPINION 

 ___________ 

PER CURIAM 

In October 2002, the Board of Immigration Appeals (ABIA@) affirmed the decision 

of an Immigration Judge (AIJ@) to deny Hong Fang's application for asylum, withholding 

of removal, and relief under the Convention Against Torture. In February 2006, Fang 

submitted a motion to the BIA to reopen the removal proceedings, which the BIA denied 
2 

as untimely. We denied Fang=s subsequent petition for review. See Fang v. Attorney 

Gen. of the United States, 241 F. App=x 903 (3d Cir. 2007). 

In January 2008, Fang returned to the BIA with another motion to reopen. She 

asked that removal proceedings be terminated, closed, or continued so that United States 

Citizenship and Immigration Services could adjudicate her application to adjust her status 

to a lawful permanent resident based on her marriage to a United States citizen. The BIA 

denied Fang=s motion. The BIA concluded that Fang=s motion was time- and 

number-barred and also declined to reopen the matter sua sponte, holding that Fang had 

not shown an exceptional situation to merit reopening as a matter of discretion. 

Fang presents a petition for review.1

 In her short pro se brief, she argues generally 

that the BIA abused its discretion in denying her motion to reopen. She explains that the 

BIA cited the number and time limitations and states that the BIA erroneously concluded 

that she failed to demonstrate an exceptional situation that would warrant sua sponte

reopening. Fang argues that she has shown that her situation is exceptional and warrants 

sua sponte reopening. The Government responds that we lack jurisdiction to review the 

BIA=s decision to decline to exercise its sua sponte authority to reopen. In the alternative, 

the Government asks us to dismiss as moot Fang=s claim that the BIA abused its 

discretion in denying Fang=s second motion to reopen. 

 

 1On Fang=s motion, we held her case in abeyance pending a decision on her application 

for adjustment of status. The parties briefed the case after Fang notified us that her 

application had been denied. 
3 

We agree with the Government that the BIA=s decision to decline to reopen Fang=s 

proceedings sua sponte is a discretionary decision beyond our jurisdiction. See CalleVujiles v. Ashcroft, 320 F.3d 472, 475 (3d Cir. 2003) (ABecause 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 to reopen or reconsider the case.@) 

To the extent that Fang presents an issue beyond a claim relating to the BIA=s 

discretionary decision, we also must dismiss the petition as moot because there is no 

longer a live controversy. AThe existence of a case and controversy is a prerequisite to all 

federal actions.@ Phila. Fed=n of Teachers v. Ridge, 150 F.3d 319, 322 (3d Cir. 1998) 

(citation omitted). A live controversy is Aa real and substantial controversy admitting of 

specific relief through a decree of conclusive character.@ Int=l Bhd. of Boilermakers v. 

Kelly, 815 F.2d 912, 915 (3d Cir. 1987). The central question in the mootness analysis is 

whether meaningful or effective relief remains available. See id. at 916. In this case, we 

cannot say that it does. Fang sought reopening to terminate, close, or continue the 

removal proceedings pending the adjudication of her application to adjust her status. As 

Fang previously notified us, her adjustment application was denied in October 2009. 

Even if we were to remand this matter to the BIA, the remand would give her no relief 

because her reason for reopening, namely for Atermination, administrative closure or 

simply a continuance, for a period of time long enough for the USCIS to adjudicate the 

adjustment application@ R. 15-16, no longer exists. 
4 

For these reasons, we will dismiss Fang=s petition for review.