2010 D e c i sion s O p inion s of the U nit e d S t a t e s C our t of Appe al s for the Thir d C ir c uit

10-7-2010 

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P r e c e de n t i al or N on-P r e c e de n t i al : N on-P r e c e de n t i al
D ock e t N o . 08-3729

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### NOT PRECEDENTIAL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 ( A BIA @ ) affirmed the decision of an Immigration Judge ( A IJ @ ) 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 denied2 

### 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.

1 

### On 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) ( A Because 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. A The 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 A a 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 A termination, 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.