NOT PRECEDENTIAL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 Petitioner2

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 Castillo

Reyes 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 . F or 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 c laim 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 supplement al

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 ac tivity, 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 “stop

time” 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

- bo rn children, who are reasonably likely to suffer extreme and unusual hardship if he is removed . Thus, Castillo

Reyes claims he is prima facie eligible for the relief of cancellation of removal and seeks to reopen his two

- decades

- old removal proceeding s 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 ineffect ive assistance of counsel

n or 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, bas ed 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 petition s us to review

.

II. JURISDICTION AND STANDARD OF REVIEW
We generally ha ve 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 Im migr. 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

- 20 2 1 consensus, but the DOJ agrees that the amended regulation should remain enjoined p ending 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 ther efore 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, 47 5 (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 agai nst 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 inferenc e that
the BIA ’s discretion has in fact been limited.” Sang Goo Park , 846 F.3d at 653 (emphas e s added). A mere “‘pattern’ of dispositions whose contours are not clearly
defined [,] or which is not tailored to the petitioner’s circumstances [,] ” will not su ffice. 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, 44 6 (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 ( quo ting Matter of H

- Y

- Z

- , 28 I&N Dec. 156, 161 (BIA 2020) (emphas es 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 [ p etitioner’s] status” but on a finding that its disposition was not exceptional)

. Castillo

- Reyes next argues tha t this case falls within the settled

- course exception to reviewability because he “h as 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.” Castillo

Reyes’ Br. at 18. Bu t before we hold the settled

- course exception to apply, we require a showing of “tailored” cases sh owing that the BIA has “meaningfully limited” its authority. Sang Goo Park , 846 F.3d at 65 6

. Castillo

- Reyes has not made such a showing . I n 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 th e 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

. T hree cases “does not a settled course make.” Sang Goo Park , 846 F.3d at 654. In this context, w e 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 jurisdi ction 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 prote ctible 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 the se 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

.