NOT PRECEDENTIAL

UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

No. 23-1238

CESAR CALIXTO CASTILLO-REYES,

 Petitioner

v.

ATTORNEY GENERAL UNITED STATES OF AMERICA

On Petition for Review of a Final Order 

Of the Board of Immigration Appeals

(BIA No.: A079-037-370)

Appellate Immigration Judge: Earle B. Wilson

Argued on November 2, 2023

Before: JORDAN, ROTH, and AMBRO, Circuit Judges

(Opinion Filed: February 16, 2024) 

Marcia Kasdan (Argued)

Law Office of Marcia S. Kasdan

127 Main Street

1

st Floor

Hackensack, NJ 07601

Counsel for Petitioner
2

Merrick B. Garland

Krishana Patel 

United States Department of Justice 

Office of Immigration Litigation

P.O. Box 878

Ben Franklin Station

Washington, DC 20044

Kohsei Ugumori (Argued)

United States Department of Justice

1100 L Street NW

Washington, DC 20530

Counsel for Respondent

OPINION*

 

AMBRO, Circuit Judge

In 2002, an Immigration Judge rejected the asylum claim of Cesar Calixto CastilloReyes of Colombia, and in 2004 the Board of Immigration Appeals (“BIA”) dismissed his 

appeal from that decision and ordered his removal. He stayed in the United States despite 

that order, and 17 years later he moved to reopen his proceedings to apply for cancellation 

of removal. The BIA declined to do so, and Castillo-Reyes filed a petition for review with 

us. For the reasons that follow, we dismiss his petition in part and deny the remaining part.

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

constitute binding precedent.
3

I. BACKGROUND

On or around July 29, 2001, Castillo-Reyes, fleeing threats from the Revolutionary 

Armed Forces of Colombia (or “FARC”1), illegally entered the United States and was 

detained. Three days later, he was served with a Notice to Appear for removal proceedings. 

The Notice, however, left the time and date of his appearance “to be determined,” though

on August 22 he received a supplemental document with that information. Castillo-Reyes 

duly appeared before an Immigration Judge, admitted the charge of entry without 

inspection, and applied for asylum. That claim was rejected in 2002 for reasons that are 

irrelevant here. As noted, in 2004 the BIA dismissed his appeal, and a final order of 

removal followed.

Rather than comply with that order, Castillo-Reyes remained in the country and—

17 years later—filed a Motion to Reopen Proceedings Based on Changed Circumstances

in order to apply for cancellation of removal. The changed circumstances relate to the 

Supreme Court cases Pereira v. Sessions, 138 S. Ct. 2105 (2018), and Niz-Chavez v. 

Garland, 141 S. Ct. 1474 (2021), which together establish that the “stop-time” on accruing 

physical presence in the United States (for purposes of cancellation of removal) cannot be 

triggered by a defective Notice to Appear, even when it is later corrected by a supplemental 

1 The FARC is a Marxist-Leninist guerilla group that has been in conflict with the 

Colombian government since 1964. In 2016, the group signed a ceasefire accord with the 

Colombian government, and in 2017 it handed its weapons over to the United Nations 

and announced its reformation as a legal political party. However, in 2019 a small 

faction of FARC leaders announced a return to armed activity, resulting in preemptive 

strikes by the Colombian government. See Editors, Encyclopedia Britannica, FARC (Oct. 

19, 2023), https://www.britannica.com/topic/FARC, accessed Nov. 6, 2023.
4

document. Because that is what occurred in his case, Castillo-Reyes claims that the “stoptime” was never triggered. As a result, he argues, he has now accrued ten years of physical 

presence, and also has two qualifying relatives, his American-born children, who are 

reasonably likely to suffer extreme and unusual hardship if he is removed. Thus, CastilloReyes claims he is prima facie eligible for the relief of cancellation of removal and seeks

to reopen his two-decades-old removal proceedings to seek it.

However, the BIA denied Castillo-Reyes’ motion. It first determined that it was 

time barred under the 90-day motion deadline in Section 240(c)(7) of the Immigration 

and Nationality Act, 8 U.S.C. § 1229a(c)(7). See also 8 C.F.R. § 1003.2(c)(2). While 

Castillo-Reyes had not explicitly argued for equitable tolling, the BIA considered the 

issue and held that it did not apply, as he alleged neither ineffective assistance of counsel 

nor a legal error that affected the prior proceedings or prevented the filing of a motion 

within the pertinent time frame. In any event, the change in law here, the BIA reasoned, 

would not have affected the prior proceedings; regardless whether the Notice to Appear 

stopped time, Castillo-Reyes would have accrued less than three years of physical 

presence at the time of his final administrative order of removal and the 90-day period for 

reopening. Similarly, he did not have a qualifying relative permitting him to apply for 

cancellation of removal within that period, only having children in America much later. 

Thus, the BIA denied the motion as untimely.
5

Having done so, the BIA declined to use its discretionary authority under 8 C.F.R. 

§ 1003.2(a) to reopen proceedings sua sponte.

2

 It said that Castillo-Reyes did not 

demonstrate that his case presented an “exceptional” situation warranting the exercise of 

sua sponte authority because any potential relief arose only many years later, based on 

equities acquired while he remained in the United States illegally. In a footnote, the BIA

distinguished Niz-Chavez, in which the noncitizen had accumulated ten years of physical 

presence during the pendency of the removal proceedings. Thus, it declined to reopen 

Castillo-Reyes’ proceedings sua sponte. He now petitions us to review.

II. JURISDICTION AND STANDARD OF REVIEW

We generally have jurisdiction to review a BIA final order under 8 U.S.C. § 

1252(a)(1) and review questions about our own jurisdiction de novo. Borrome v. Att’y 

Gen., 687 F.3d 150, 154 (3d Cir. 2012). Where we have jurisdiction, we review the denial 

2

In 2021 the Department of Justice amended this regulation to allow the BIA to reopen 

proceedings sua sponte “solely in order to correct a ministerial mistake or typographical 

error in that decision or to reissue the decision to correct a defect in service”; “[i]n all 

other cases the Board may only reopen . . . pursuant to a motion filed by one or both 

parties.” 8 C.F.R. § 1003.2(a) (eff. Jan. 25, 2021). But two federal courts enjoined 

implementation of the amended regulation nationwide. See Centro Legal de la Raza v. 

Exec. Off. for Immigr. Rev., 524 F. Supp. 3d 919, 937, 940-41, 980 (N.D. Cal. 2021); 

Cath. Legal Immigr. Network, Inc. v. Exec. Off. for Immigr. Rev., No. 21-cv-00094-RJL, 

Dkt. No. 46 at 8 (D.D.C. Apr. 3, 2021). Those cases have been stayed pending a new 

rule proposed by the DOJ that mostly tracks the pre-2021 consensus, but the DOJ agrees 

that the amended regulation should remain enjoined pending the rulemaking process. See

Status Report at 1-2, Centro Legal, No. 3:21-cv-00463, D.I. 91 (N.D. Cal. Nov. 13, 

2023); Joint Status Report at 1, Cath. Legal, No. 21-cv-00094-RJL, D.I. 63 (D.D.C. Oct. 

19, 2023); 88 Fed. Reg. 62242, 62278-79. We therefore apply the unamended regulation 

as it was in effect in November 2021, when Castillo-Reyes requested the BIA to reopen 

sua sponte his removal proceedings. See Wright v. Att'y Gen. of the United States of Am., 

No. 19-3843, 2021 WL 4553022, at *3 (3d Cir. Oct. 5, 2021) (“We agree with 

[Petitioner] and conclude that the Rule is currently inoperative.”).
6

of a motion to reopen under the deferential abuse of discretion standard: we “will not 

disturb the BIA’s determination unless it is arbitrary, irrational, or contrary to law. . . .” 

Darby v. Att'y Gen. of United States, 1 F.4th 151, 159 (3d Cir. 2021). 

However, “the decision of the BIA whether to invoke its sua sponte authority is 

committed to its unfettered discretion . . . [because] the regulation providing for reopening 

or reconsidering a case sua sponte offers no standard governing the agency’s exercise of 

discretion.” Calle-Vujiles v. Ashcroft, 320 F.3d 472, 475 (3d Cir. 2003). As such, “orders 

by the BIA declining to exercise its discretion to reopen sua sponte are functionally 

unreviewable, unlike other orders on immigration motions to reopen.” Sang Goo Park v.

Att'y Gen., 846 F.3d 645, 651 (3d Cir. 2017).

There are two exceptions to that rule against review. The first “arises when the 

BIA relies on an incorrect legal premise in denying a motion to reopen sua sponte.” Id. 

“In such cases we can remand to the BIA so it may exercise its authority against the 

correct ‘legal background.’” Pllumi v. Att'y Gen., 642 F.3d 155, 160 (3d Cir. 2011). The 

second, or “settled-course” exception, occurs when a petitioner establishes “that the BIA

has limited its discretion via a policy, rule, settled course of adjudication, or by some 

other method, such that [its] discretion can be meaningfully reviewed for abuse. The 

petitioner’s showing must be persuasive enough to allow the reasonable inference that 

the BIA’s discretion has in fact been limited.” Sang Goo Park, 846 F.3d at 653 

(emphases added). A mere “‘pattern’ of dispositions whose contours are not clearly 

defined[,] or which is not tailored to the petitioner’s circumstances[,]” will not suffice. 

Id.
7

We retain jurisdiction to review constitutional claims such as a denial of due 

process. 8 U.S.C. § 1252(a)(2)(D); Darby, 1 F.4th at 165–66. We review those claims 

de novo. See Bonhometre v. Gonzales, 414 F.3d 442, 446 (3d Cir. 2005).

III. DISCUSSION

Castillo-Reyes first argues that the BIA premised its decision not to reopen sua 

sponte on an incorrect legal premise, namely that “later acquired equities cannot be 

considered as ‘compelling circumstances’ or as ‘truly exceptional circumstances’ to justify 

discretionary reopening.” Castillo-Reyes’ Br. at 18-19.

3

 This, he contends, makes 

reviewable the decision not to exercise its discretionary authority. 

But the BIA did no such thing. Instead, it stated clearly that equities established 

after an order of removal “generally do not constitute such truly exceptional circumstances 

as to warrant discretionary reopening.” App. at 7 (quoting Matter of H-Y-Z-, 28 I&N Dec. 

156, 161 (BIA 2020) (emphases added)). This does not reflect an incorrect belief about 

the BIA’s discretion; instead, it is an acceptable use of it. Darby, 1 F.4th at 165 (declining 

to find the incorrect legal premise exception because the BIA’s decision did not “rest on a 

3

In his petition for review, Castillo-Reyes does not dispute the untimeliness of his 

motion to reopen proceedings, and he has thus abandoned the issue. See Garcia v. Att'y 

Gen. of U.S., 665 F.3d 496, 502 (3d Cir. 2011), as amended (Jan. 13, 2012) (“When an 

issue is either not set forth in the statement of issues presented or not pursued in the 

argument section of the brief, the appellant has abandoned [. . .] that issue on appeal.”). 

In any case, we agree with the BIA that equitable tolling is not applicable “because the 

change in law at issue here would not have affected the prior proceedings, given that the 

respondent was not eligible for cancellation of removal relief at any time prior to the 

entry of the final administrative order of removal [in 2004] or during the subsequent 90-

day window [thereafter] to seek reopening.” App. at 6-7. 
8

legal determination of [petitioner’s] status” but on a finding that its disposition was not 

exceptional).

Castillo-Reyes next argues that this case falls within the settled-course exception to 

reviewability because he “has located fifteen cases where the Board exercised its discretion 

favorably and granted sua sponte motions to reopen which sought cancellation of removal 

relief after Pereira due to a defective [Notice to Appear] not stopping time.” CastilloReyes’ Br. at 18. But before we hold the settled-course exception to apply, we require a 

showing of “tailored” cases showing that the BIA has “meaningfully limited” its authority. 

Sang Goo Park, 846 F.3d at 656. 

Castillo-Reyes has not made such a showing. In almost every case he cites, the 

petitioner either had already acquired the requisite physical presence at the time of the 

initial proceedings or had filed a timely motion such that no exercise of sua sponte authority 

was necessary. He presents only three cases in which the BIA exercised its discretionary 

authority to reopen proceedings sua sponte where the petitioning alien had, in light of an 

improper notice of appearance, only years later accumulated the requisite physical presence 

to qualify for cancellation of removal. Three cases “does not a settled course make.” Sang 

Goo Park, 846 F.3d at 654. In this context, we are hard pressed to discern an “obvious 

consistency” to the BIA’s pattern of decisions that shows it has meaningfully restricted its 

discretion regarding similarly situated aliens. Id.

With no exceptions to evade the rule against review, we lack jurisdiction over the 

BIA’s decision not to grant relief sua sponte. Having so concluded, we find no need to 

address whether Castillo-Reyes makes out a prima facie case for cancellation of removal.
9

Finally, Castillo-Reyes claims that “[r]eturning him to Colombia would be a denial 

of due process of law as guaranteed by the Fifth Amendment to the U.S. Constitution.” 

Castillo-Reyes’ Br. at 26. But to raise a colorable due-process claim, an alien must first 

state a liberty or property interest, and aliens do not have such an interest in discretionary 

relief such as the granting of a motion to reopen. Darby, 1 F.4th at 165–66. To the 

extent Castillo-Reyes argues that his liberty interest is not in obtaining discretionary 

relief but in having the BIA accurately decide his motion, we have “held that an alien had 

no due-process interest in even being considered for relief when the statute lacked 

explicit mandatory language that could create in an alien any protectible expectation of 

entitlement to relief.” Id. (emphasis in text; internal quotations omitted). “A motion to 

reopen likewise creates no protectible expectation of entitlement to relief.” Id. (internal 

quotations omitted). In any case, we believe Castillo-Reyes’ claim was fairly considered 

for the reasons noted, the result being that he fails to make out a colorable constitutional 

claim.

* * *

For these reasons, we dismiss Castillo-Reyes’ petition for review of the BIA’s 

decision not to sua sponte reopen his proceedings and deny his petition in remaining part.