1 RECOMMENDED FOR FULL-TEXT PUBLICATION Pursuant to Sixth Circuit I.O.P. 32.1(b) File Name: 14a0239p.06 

### UNITED STATES COURT OF APPEALS

FOR THE SIXTH CIRCUIT

_________________

M UHAMMAD S ALMAN R AIS , Petitioner ,

v

.

E RIC H. H OLDER , J R ., Respondent

. ┐ │ │ │ │ │ │ │ ┘ No. 13-3639

On Petition for Review of a Decision of the Board of Immigration Appeals. No. A079 692 636—Detroit. Decided and Filed: September 16, 2014
Before: BOGGS and DONALD, Circui t Judges; HOOD, District Judge. *

_________________ COUNSEL

ON BRIEF: Marshal E. Hyman, Russell Reid Ab rutyn, MARSHAL E. HYMAN & ASSOC., PC, Troy, Michigan, for Petitioner. Kelly J. Walls, UNITED STA TES DEPARTMENT OF JUSTICE, Washington, D.C., for Respondent.

_________________ OPINION

_________________
BERNICE BOUIE DONALD, Ci rcuit Judge. Muhammad Salman Rais, a native and citizen of Pakistan, is under a final order of re moval from the United States. He has twice moved the Board of Immigration App eals (BIA) to reopen removal pr oceedings against him without

* The Honorable Denise Page Hood, Un ited States District Judge for th e Eastern District of Michigan, sitting by designation. 

### >No. 13-3639 Rais v. Holder Page 2

success, requesting that the proceedings be susp ended while the United States Citizenship and Immigration Services (USCIS) adjudicates his a pplication for adjustment of status. The BIA
denied the first motion on the meri ts and refused to exercise its sua sponte authority to grant the second, which was untimely and number-barred. Rais now petitions for judi cial review of the
second denial. For the reasons that follow, however, we DISMISS the petition for want of jurisdiction.

I. FACTUAL BACKGROUND & PROCEDURAL HISTORY

A. Context.
The legal context of this case—caught, as it is, between two branches of the federal immigration system—potentially clouds apprehen sion of the questions that it raises. Accordingly, a brief sketch of that context is in order:
Our immigration system empowers two di fferent entities to adjudicate an adjustment of status app lication. Immigration Judges, subject to review by the [BIA], decide adjustment applications for most noncitizens who are in removal proceedings. Applications from all ot her noncitizens are decided by USCIS. Pursuant to interim regul ations adopted by the Execu tive Office for Immigration Review in 2006, however, . . . [the] adjustment applications [of a small group of ‘arriving aliens’] are within USCIS’[s] exclusive jurisdiction, even though these noncitizens are in removal proceedings [befor e an IJ or the BIA] or have removal orders [pending] against them. [ 1 ] When USCIS denies an application fo r adjustment of status in a final agency action, the noncitizen typically reque sts relief in federal district court under the Administrative Procedure Act . . . . But when an Immigration Judge or the [BIA] denies an application in the pr ocess of entering a final removal order . . . the noncitizen’s only recour se is to ask the [BIA] to reopen or reconsider the matter, or to file a petition for review of the Board’s order in a [federal] court of appeals.
Marrakchi v. Napolitano , 494 F. App’x 877, 887 (10th Cir. 2012) (Lucero, J., dissenting) (citations omitted) (discussing an issue that “[t] he majority d[id] not reach”). Non-citizens are

1 Accord Rais v. Holder , 518 F. App’x 476, 477 (6th Cir. 2013) (per curiam) (“The USCIS has exclusive jurisdiction over applications for adjustment of status by arriving aliens, except in the case of an alien who is renewing an application that he filed prior to departure from the United States on advance parole, which may be presented to an IJ in removal proceedings.” (citing Brito v. Mukasey , 521 F.3d 160, 166-68 (2d Cir. 2008)).No. 13-3639 Rais v. Holder Page 3

subject to a ten-year bar on re-e ntry into the United States if they are found to have been unlawfully present here for more than one year. 8 U.S.C. § 1182(a)(9)(B)(i)(II).
B. History.
Against this backdrop, this case presents two di screte claims that a convoluted factual and procedural history simila rly threatens to obscure. At an earlier stage of the case, this court briefly recounted much of that history as follows:

Rais was born in Pakistan in 1975. He entered the United States in 2002 to attend school. Shortly after his arrival, Rais married a United States citizen and applied for adjustment of status to lawf ul permanent residency. He was convicted of domestic violence against his wife, also in 2002. Rais was granted advance parole, [ 2 ] allowing him to leave the United States without abandoning his application for adjustment of status. He was paroled back into this country in 2003. In 2004, [Rais’s] application for adju stment of status was denied because [he] and his wife were divor cing. [Rais] married another United States citizen in 2005, and again applied for adjustment of st atus. That application was denied in 2009 because of [the] domestic violence conviction. [ 3 ] Simultaneously, Rais was placed in removal proceedings [in Detroit, Michigan], in which he also attempted to apply for adjustment of status. The IJ [ordered his removal], determin[ing] that she lacked jurisdiction to grant Rais adju stment of status under 8 U.S.C. § 1255 and applicable implementing regulations, [ 4 ] and the BIA affirmed [on February

2 “As its name implies, ‘advance parole’ is simply parole that has been requested and authorized in advance based on an expectation that [an] alien will be presenting himself for inspection without a valid visa in the future.” In re Arrabally , 25 I. & N. Dec. 771, 777 (BIA 2012) (citing 8 C.F.R. § 212.5(f)). Although aliens may request advance parole from outside of the United States, it is typically sought by aliens who are already within the country and “want[ ] to leave temporarily but fear[ ] that [they] will either be excluded as . . . in admissible . . . upon return or be deemed to have abandoned a pending application for an immigration benefit.” Id. (citing Matter of G-A-C- , 22 I. & N. Dec. 83, 88 (BIA 1998); 8 C.F.R. §§ 245.2(a)(4)(ii)(A), 1245.2(a)(1)(ii) (2011)). Once the purpose of advance parole has been satisfied, it is terminated. Id. 3 In 2013, the conviction was set aside, and the case ag ainst Rais was dismissed with prejudice for want of jurisdiction.
4 See supra note 1. The IJ concluded that Rais was an “arriving alien” over whose immigration status USCIS had exclusive jurisdiction because Rais had last entered the United States on advance parole. Rais had not renewed the application for adjustment of status that he ha d filed before he left the country, that application having been denied because Rais and his first wife were divorcing. Instead, he filed a new application. Accordingly, the IJ was correct: USCIS had exclusive jurisdic tion over Rais’s immigration status. See Rais , 518 F. App’x at 477. An “arriving alien” is [1] an applicant for admission coming or attemp ting to come into the United States at a port-of-entry, or [2] an alien seeking transit through the United States at a port-of-entry, or [3] an alien interdicted in international or United States waters and brought into the United States by any means, whether or not to a designated port-of-entry, and regardless of the means of transport. An arriving alien remains an arriving alien even if paroled . . . and even after any such parole is terminated or revoked. 8 C.F.R. § 1001.1(q). Although aliens who enter the United States through a grant of advance parole need not be designated “arriving aliens” solely by reason of the grant, id. , Rais now concedes that USCIS “has exclusiveNo. 13-3639 Rais v. Holder Page 4

13, 2012, (A.R. 180, 204-05)]. Meanwhile, Rais had filed anothe r application for adjustment of status with [USCIS ], which was also denied in 2012. [ 5 ]

Rais v. Holder , 518 F. App’x 476, 476 (6th Cir. 2013) (per curiam). 6

Rais then filed a fourth application for adjustment of status (discounting the request for status adjustment that he directed to the IJ) with USCIS on March 5, 20 13, to which he appended nearly one hundred pages of information to eviden ce his fitness to remain in the United States and to demonstrate the hardship that remova l from the country would impose on him and his family. According to that information, Rais and his second wife are both practicing physicians in rural western Michigan; they provide medical care to an underserved population and free medical care to indigent patients; their two children, Rais’s mother and three sisters, and the parents and five siblings of Rais’s wife all lawfully reside in the United States; and Rais no longer has any family abroad.
Additionally, Rais noted that he has cooperated with the United States as a plaintiff in a qui tam action; observed that conditions in Pakist an would be too dangerous for his children, and especially his daughter, to return there with him; and explained that he and his wife are the primary caretakers of their elderly parents. He also asserted that his ex-wife had submitted a letter in support of his efforts to challenge hi s domestic-violence conviction. The conviction was set aside for lack of jurisdiction in March 2013.

Rais next filed a motion with the BIA to reopen and administratively close—read: “suspend”—the removal proceedings against him wh ile he awaited USCIS’s ruling. He had filed

jurisdiction over his application to adjust status to that of a lawful pe rmanent resident” “[b]ecause [his] last entry into the U.S. was through a grant of advance parole[.]”
5 USCIS initially denied Rais’s third app lication (his fourth if one counts the adjustment of status that Rais sought before the IJ) on the mistaken ground that the IJ who was presiding over the removal proceedings against Rais “ha[d] sole jurisdiction to adjudicat e any application for adjust ment of status.” (A.R. 199). Rais then filed a motion to reopen his case with the BIA on March 9, 2012; the BIA denied the motion on the ground that USCIS did, in fact, have jurisdiction over Rais’s application. (A.R. 180 (“The USCIS decision appears to be in error, as . . . adjudication of the adjustment application may proceed rega rdless of the outstanding removal order.”)). USCIS then exercised jurisdiction over the application and dismissed it for the same reason that it had dismissed Rais’s second application—Rais’s domestic-violence conviction. 6 On May 7, 2013, this court upheld the BIA’s decision as reasonable. Rais , 518 F. App’x at 477. Citing 8 U.S.C. §§ 1252(a)(1) and (a)(2)(B)(i), respectively, the co urt also concluded that it lacked jurisdiction to review USCIS’s denial of Rais’s third appli cation because the decision was not a fi nal order of removal and because it lacked the power to review discretionary deni als of adjustments of status in any case. Id.No. 13-3639 Rais v. Holder Page 5

a previous motion to reopen in March of 2012, but was unsuccessful. 7 In his second motion, filed on March 11, 2013, Rais invoked only the BIA’s authority to act sua sponte as a basis for granting him relief, stating th e following in relevant part:

This is Dr. Rais’s second motion. He filed his first motion when the USCIS ruled that the Immigration Court, and not the USCIS, had jurisdiction over his adjustment of status application. The USCIS later reconsidered its decision and exercised jurisdiction ove r Dr. Rais’s application. The [BIA] should exercise its sua sponte authority to reopen and administratively close these proceedings because of the compelling humanitarian factors.
(A.R. 23 (citing In re J-J- , 21 I. & N. Dec. 976, 984 (BIA 1997)); accord A.R. 25 (also citing In
re J-J- , 21 I. & N. Dec. at 984) (“There are exceptional circumstances in Dr. Rais’s case that warrant the sua sponte reopening of his removal proceedings.”)).
On May 15, 2013, the BIA denied the second mo tion as untimely and number-barred. It
observed that the motion ha d been filed more than a year af ter the final order of removal had been entered and explained that administrative cl osure is “not appropriat e” after the entry of a
final order. 8 The BIA also reaffirmed its previous determination that USCIS had jurisdiction over Rais’s application for adjustment of status and concluded that Rais “ha[d] not demonstrated ‘exceptional circumstances’ that would warrant the exercise of [the BIA’ s] sua sponte authority to reopen” the removal proceedings against him. 9 According to the BIA, although it “sympathize[d] with the procedural i rregularities that [Rais] ha[d] faced,” 10 it would not grant Rais’s motion to reopen because USCIS appeared to be proceeding with adjudication of his latest application.

7 See supra note 5 and accompanying text. An alien generally may file only one motion to reopen removal proceedings. 8 U.S.C. § 1229a(c)( 7)(A); 8 C.F.R. § 1003.2(c)(2). 8 As mentioned above, the BIA had affirmed the IJ’s order of removal against Rais on February 13, 2012. See 8 U.S.C. § 1101(a)(47)(B) (explaining that an order of removal becomes final after the BIA affirms an IJ’s order of removal or after the period of time during which appeal to the BIA is available expires, whichever is earlier). 9 See supra note 5 and accompanying text. Motions to reopen generally must be filed within ninety days of the date of entry of a final removal order unless certain statutory exceptions, not alleged here, are met. See 8 U.S.C. § 1229a(c)(7)(C)(i)-(iv); 8 C.F.R. §§ 1003.2(c)(2), (c)(3); see also infra note 12 and accompanying text. Because Rais filed his second motion to reopen more than a year after the BIA’s final removal order was entered, and because a party may only file one motion to reopen remo val proceedings, the BIA could only reopen the removal proceedings against Rais by finding that his case warranted the exercise of its sua sponte authority. See 8 C.F.R. § 1003.2(a). 10 See supra note 5 and accompanying text.No. 13-3639 Rais v. Holder Page 6

C. The Instant Proceedings.
Rais petitioned this court for judicial review of the BI A’s order on May 24, 2013, raising two claims for relief: (1) whether the denial of his second motion to reopen frustrated his statutory right to apply for adjustment of status before USCIS; and (2) whether the denial ran counter to the policy goals of avoiding needless sepa ration of families. He also requested that the court stay his removal from the country and hold his petition in abeyance until USCIS adjudicated his status-adjustment application. 11

On October 30, 2013, we granted th e first request but denied the second, concluding that USCIS’s disposition of Rais’s application “w[ould] have no impact on the issues presented [to this court].” We also concluded that Rais w ould not be prejudiced even if we issued a ruling before USCIS adjudicated his application because Rais could request a stay of removal from the Department of Homeland Security (DHS). We now conclude that we lack jurisdiction to review the BIA’s denial of Rais’s second motion to reopen.

II. ANALYSIS
A. Statutory Prerequisites.
As of May 11, 2005, the REAL ID Act of 2005, Pub. L. No. 109-13, 119 Stat. 302, governs judicial review of final or ders of removal. Th e act empowers this co urt to review final orders of removal as long as (1) a petition for judicial review is f iled within thirty days of such an order, and (2) the IJ who completed the rem oval proceedings did so within this circuit. 8 U.S.C. § 1252(a), (b)(1)-(2); see id. § 1101(a)(47)(B) (explaining th at an order of removal
becomes final after the BIA affirms an IJ’s orde r of removal or after the period of time during which appeal to the BIA is available expires, whic hever is earlier). This authority extends to the denial of motions to reopen removal proceedings. 12 See Haddad v. Gonzales , 437 F.3d 515, 517 (6th Cir. 2006) (citing, inter alia , Prekaj v. INS , 384 F.3d 265, 268 (6th Ci r. 2004) (“The denial

11 The Attorney General did not oppose Rais’s request for a stay but objected to holding Rais’s petition in abeyance.
12 We generally may review such a denial only to the extent that a petitioner “has exhausted all administrative remedies available to [him] as of right.” 8 U.S.C. § 1252(d)(1). Because Rais invoked only the BIA’s sua sponte authority as a basis for relief in his second motion to reopen, he failed to exhaust his administrative remedies with respect to relief on any other basis.No. 13-3639 Rais v. Holder Page 7

of a motion to reopen is a final order subject to judicial review.”)). Additionally, the scope of
our review is limited to “the administrative reco rd on which the order of removal is based.” Id. § 1252(b)(4). The standard by which we assess th at record is as foll ows: “[A]dministrative findings of fact are conclusive unless any r easonable adjudicator w ould be compelled to conclude to the contrary.” Id.
Here, the facts are not in dispute. The BI A denied Rais’s second motion to reopen the removal proceedings against him on May 15, 2013, a nd Rais filed a petition for judicial review of that denial nine days later, on May 24, 2013 . The IJ who completed removal proceedings against Rais did so in Detroit, Michigan. Acco rdingly, the court’s exerci se of jurisdiction over Rais’s petition ordinarily would be proper.

B. Jurisdictional Question.
There exists, however, a jurisdictional ques tion related to the BIA’s denial of the underlying motion to reopen. Rais neither dis putes that the motion was both untimely and number-barred nor asserts that he qualifies for any exception to the filing requirements. See 8 U.S.C. § 1229a(c)(7)(A), (C)(i) (filing requirements); 8 C.F.R § 1003.2(c)(2) (same); id. § 1003.2(c)(3)(i)-(iv) (exceptions to filing requirements). 13 Accordingly, the BIA’s sua sponte authority to reopen removal proceedings was th e only means by which he could have obtained
relief. See 8 C.F.R § 1003.2(a) (“The [BIA] may at a ny time reopen or reconsider on its own motion any case in which it has rendered a deci sion. . . . The [BIA] has discretion to deny a motion to reopen even if the party moving has made out a prima facie case for relief.”). This authority is available only “in exceptional situations,” In re J-J- , 21 I. & N. Dec. at 984, and “is not meant to be used as a general cure for filing defects or to otherwise circumvent the regulations[ ] where enforcing th em might result in hardship,” id.
As the Supreme Court has explained, there is no statutory mechanism by which removal proceedings may be reopened. INS v. Doherty , 502 U.S. 314, 322 (1992); cf. Kucana v. Holder ,

13 The time for filing a motion to reopen also may be equitably tolled if a petitioner, “‘despite diligent efforts, did not discover [his] injury until after the limitations period had expired,’” Barry v. Mukasey , 524 F.3d 721, 724 (6th Cir. 2008) (quoting Tapia-Martinez v. Gonzalez , 482 F.3d 417, 422 (6th Cir. 2007)), such as when “‘a petitioner has received ineffectiv e assistance of counsel,’” id. (quoting Ljucovic v. Gonzales , 144 F. App’x 500, 503 (6th Cir. 2005)).No. 13-3639 Rais v. Holder Page 8

558 U.S. 233, 243-44 (2010) (citing 8 C.F.R. § 1003.2( a)) (explaining that th e BIA’s “authority to act on a motion to reopen” is not provided by statute “but only in th e Attorney General’s regulation”). 8 U.S.C. § 1229a(c)(7) authorizes the filing of motions to reopen but says nothing as to the granting of such motions. 14 The source of the BIA’s au thority on reopening, 8 C.F.R. § 1003.2, “requires that under certain circumstances a motion to reopen be denied, but does not specify the conditions under whic h it shall be granted[.]” Doherty , 502 U.S. at 322-23. Consequently, the decision to grant or de ny a motion to reopen is discretionary. Id. (citing INS v. Phinpathya , 464 U.S. 183, 188 n.6 (1984)); Haddad , 437 F.3d at 517 (quoting 8 C.F.R. § 1003.2(a)). This court generally reviews such a decision for abuse of discretion. 15 Haddad , 437 F.3d at 517 (citing, inter alia , Harchenko v. INS , 379 F.3d 405, 409 (6th Cir. 2004)); Barry v. Mukasey , 524 F.3d 721, 724 (6th Cir. 2008) (citing Haddad ).
With regard to the BIA’s sua sponte authority, however, we a pply a different rule.
Under Barry v. Mukasey and Harchenko v. INS , the exercise of this specific authority “‘is
committed to the unfettered discretion of the BIA’ and therefore is not subject to judicial
review.” Barry , 524 F.3d at 723 (quoting Harchenko , 379 F.3d at 410-11). Our most recent decisions on the matter—for example, Lisboa v. Holder , __ F. App’x __, 2014 WL 2869204 (June 2014), Zhang v. Holder , 702 F.3d 878, 882 (6th Cir. 2012), and Gor v. Holder , 607 F.3d 180, 182 (6th Cir. 2010)—adhere to th is view. Accordingly, we la ck jurisdiction to review the BIA’s denial of Rais’s second motion to reopen.

14 “[T]here is a world of difference between the immigrant’s statutory right to file a motion to reopen . . . and the discretionary right of the BIA—a right neither granted by nor addressed by Congress—to reopen sua sponte .” Gor v. Holder , 607 F.3d 180, 194 (6th Cir. 2010) (Batchelder, C.J., concurring).
15 This practice appears to be in conflict with 8 U.S.C. § 1252(a)(2)(B)(ii), which states that courts do not have jurisdiction to review actions by the Attorney Ge neral “the authority for which is specified under this subchapter to be in the discretion of the Attorney General.” As the Supr eme Court recently observed, however, “Federal-court review of administrative decisions denying motions to reopen removal proceedings dates back to at least 1916.” Kucana v. Holder , 558 U.S. 233, 242 (2010) (collecting cases). But, “[m]indful of the [BIA]’s ‘broad discretion’ in such matters . . . courts have employed a deferential, abuse-of-discretion standard of review.” Id. (citing Doherty , 502 U.S. at 322-24).No. 13-3639 Rais v. Holder Page 9

C. Arguments in Favor of Jurisdiction.

1. Kucana

. Rais contends that the Supreme Court’s intervening decision in Kucana v. Holder
undercuts Barry and Harchenko and, recognizing that they are otherwise binding on this panel, suggests that this court reconsider those precedents en banc. Two points are re levant here. First, the entirety of Rais’s sugge stion is as follows: “[t]he Gor panel was constrained to follow prior circuit precedent because the Court would have to sit en banc [not] to do so. Thus far, the Court
has not considered this issue en banc but this case presents a good vehicle for doing so.” As the Government observes, Rais neither asserts that this case meets the standard for en banc review in Federal Rule of Appellate Procedure 35(b) no r expressly identifies “a question of exceptional importance” or a threat to the “uniformity of the court’s decisions.” Fed. R. App. P. 35(a). He also has not complied with Sixth Circuit Rule 35(a), which requires that a petition for en banc review “so state plainly on the co ver and in the title of the document.” Accordingly, Rais has
failed to demonstrate entitleme nt to en banc review.

Second, to the extent that Rais identifies a conflict between this court’s precedent and
Kucana , en banc review is not necessary to resolve it: A prior panel deci sion is binding on later panels only to the extent that “an inconsistent decision of the . . . Supreme Court [does not] require[] modification of the decision.” Ward v. Holder , 733 F.3d 601, 608 (6th Cir. 2013) (quoting Salmi v. Sec’y of Health & Human Servs. , 774 F.2d 685, 689 (6th Cir. 1985)). Accordingly, this panel w ould not be constrained by Barry and Harchenko if, as Rais argues,
Kucana mandates a contrary result. This cour t already rejected en banc review in Gor , 607 F.3d 180, reh’g en banc denied , No. 08-3859, 2010 U.S. App. LEXIS 21449 (Oct. 5, 2010), and in an unpublished case that involved similar claims, see Arestov v. Holder , 489 F. App’x 911, 921 & n.6 (6th Cir. 2012) (“With respect to the BIA’s refusal to exercise its sua sponte authority to grant [the petitioner’s] motion to reopen, [the petitioner] conte nds that the Supreme Court’s
decision in Kucana . . . controls our result. . . . [O]ur court has declined to grant an initial hearing en banc in this case.”).
Further, this court already has determined that Barry and Harchenko were not overruled by Kucana . There, the Supreme Court he ld that 8 U.S.C. § 1252(a)(2)( B)(ii), which strips courtsNo. 13-3639 Rais v. Holder Page 10

of jurisdiction to review discretionary actions by the Attorney General, “does not proscribe judicial review of denials of motions to re open.” 558 U.S. at 249. The reason, according to
Kucana , is that the BIA’s discretion regarding such motions is regulatory, ra ther than statutory, in origin. Id. at 248 (“If Congress wanted the jurisdictional bar to en compass decisions specified as discretionary by regulation along with those made discretionary by statute . . . [it] could easily have said so.”).
This holding is consistent with the long-sta nding practice of federal courts generally to
review administrative denials of motions to reopen for a buse of discretion. Id. at 242. And, as this court since has recognized, Kucana therefore “casts consider able doubt on . . . circuit precedent that dictates that [the exercise of the BIA’s sua sponte authority to act on such motions is beyond judicial review].” Gor , 607 F.3d at 182; accord id. at 197 (Cole, J., concurring). 16

But the Supreme Court specifically stated in Kucana that it “[was] express[ing] no opinion on whether federal cour ts may review the [BIA]’s d ecision not to reopen removal proceedings sua sponte .” 558 U.S. at 251 n.18. It also expr essly recognized that federal “Courts of Appeals have held that such decisions are unreviewable because sua sponte reopening is committed to agency discretion by law.” Id. (citing , inter alia , 5 U.S.C. § 701(a)(2)). Accordingly, “ Kucana cannot fairly be read as overruling [ Barry and Harchenko ],” Gor , 607 F.3d at 188, and this court has continued to apply them post- Kucana , see id. (“[ Barry and
Harchenko ] remain the law of this circuit.”); Zhang , 702 F.3d at 882 (relying on Barry for the proposition that the court was “without jurisdiction to review” a “BIA determination to forgo the
exercise of its sua sponte authority”); Arestov , 489 F. App’x at 921 (“ Kucana merely called into doubt the reasoning in [ Barry and Harchenko ] rather than overruling them.”). Under these precedents, we do not have jurisdiction to review the BIA’s denial of Rais’s motion to reopen.

16 Chief Judge Batchelder concurred separately in Gor “to contest the notion . . . that [ Kucana ] casts considerable doubt on [ Barry and Harchenko .]” Gor , 607 F.3d at 193 (Batchelder, C.J., concurring). According to Chief Judge Batchelder, “ Harchenko and Barry remain good law because they were premised on the wellestablished principle that ‘review is not to be had if the statute is drawn so that a court would have no meaningful standard against which to judge the agency’s exercise of discretion.’” Id. at 195 (Batchelder, C.J., concurring) (quoting Harchenko , 379 F.3d at 411).No. 13-3639 Rais v. Holder Page 11

2. 8 U.S.C. § 1252(a)(2)(D).
Generously construed, Rais’s brief contends that judicial review ne vertheless remains available under 8 U.S.C. § 1252(a)(2)(D), which provides that federa l courts may review “constitutional claims” and “questions of law” despite “any other provisi on of [that] chapter.” 17 The claim is weak, as it states only that “[t]he C ourt has jurisdiction to review [a] final order of removal, including constitutional claims and questions of law,” and citing as support only § 1252(a)(1), which authorizes review of final or ders of removal, and § 1252(a)(2)(D). Pet’r’s Br. 11. Rais refers to § 1252(a)(2)(D) at one ot her place in his brief, as support for an equally unsubstantiated phrase: “The Circuit Court can review constitutional claims and questions of
law.” 18 But in neither place does Rais offer argument in support of this claim. Accordingly, we
consider the claim waived. See United States v. Elder , 90 F.3d 1110, 1118 (6th Cir. 1996) (“[I]t is a ‘settled appellate rule that issues advert ed to in a perfunctory manner, unaccompanied by some effort at developed argumenta tion, are deemed waived.’” (quoting United States v.
Zannino , 895 F.2d 1, 17 (1st Cir. 1990), cert. denied , 494 U.S. 1082 (1990)).
In any event, neither of the two claims that Ra is raises before this court is a constitutional claim, and only the first, which alleges the frustr ation of a statutory right , is even potentially a

17 Relying on the Second Circuit’s opinion in Chen v. U.S. Dep’t of Justice , 434 F.3d 144 (2d Cir. 2006), this court defined § 1252(a)(2)(D) to include “constitutiona l and statutory-construction questions, not discretionary or factual questions” in Almuhtaseb v. Gonzales , 453 F.3d 743, 748 (2006). Thus, a petitioner cannot create jurisdiction by alleging “nothing more than a challenge to the [BIA’s] discretionary and fact-finding exercises cloaked as a question of law[.]” Abdul v. Holder , 326 F. App’x 344, 347 (6th Cir. 2009) (quoting Garcia-Aguillon v. Mukasey , 524 F.3d 848, 850 (8th Cir. 2008)) (concluding that asserting, without evidence, that the BIA ignored its own binding precedent does not raise a question of law); see also Reyes v. Holder , 410 F. App’x 935, 938 (6th Cir. 2011) (concluding that an objection to the weight that the BIA assigned certain evidence, without more, does not raise a question of law); Farraj v. Holder , 316 F. App’x 398, 400 (6th Cir. 2009) (same).
After this court decided Almuhtaseb , the Second Circuit revised Chen to expand its definition of “question of law.” Chen v. U.S. Dep’t of Justice ( Chen II ), 471 F.3d 315, 326-27, 329 (2d Cir. 2006) (citing INS v. St. Cyr , 533 U.S. 289 (2001)) (revised Dec. 7, 2006). Since Chen II , a circuit split has emerged over whether that term includes only issues of statutory construction and interpretation or also includes mixed questions of law and fact. See , e.g. , Ramadan v. Gonzales , 479 F.3d 646, 648 (9th Cir. 2007) (per curiam) (including mixed questions); Khan v. Filip , 554 F.3d 681, 688-89 (7th Cir. 2009) (including only “pure” questions of law). This court, however, expressly has declined to expand its definition of “questi on of law” to include mixed questions of law and fact. Khozhaynova v. Holder , 641 F.3d 187, 192 (6th Cir. 2011) (“We continue to maintain a more narrow interpretation of our jurisdiction . . . and limit review to cons titutional or statutory interpretation claims.”).
18 Id . at 16. This reference has to do with judicial review of the denial of an application for adjustment of status, not with the denial of a motion to reopen removal proceedings.No. 13-3639 Rais v. Holder Page 12

question of law. 19 But Barry and Harchenko prevent the panel from ex ercising jurisdiction over
even that claim.
Recall that the Supreme Court held in Kucana that 8 U.S.C. § 1252(a)(2)(B)(ii), which strips courts of jurisdiction to review discreti onary actions by the Attorney General, “does not proscribe judicial review of denials of motions to reopen,” 558 U.S. at 249, but offered “no opinion on whether federal cour ts may review the [BIA]’s d ecision not to reopen removal proceedings sua sponte ,” id. at 251 n.18. Accordingly, under Kucana and in the absence of Barry and Harchenko, § 1252(a)(2)(D) would enable constitu tional claims and questions of law to survive any bar to judi cial review of the BIA’s sua sponte denials that “the confluence of . . . § 1252(a)(2)(B)(ii) and 8 C.F.R. § 1003.2[a]” might otherwise impose. Gor , 607 F.3d at 187.

But Barry and Harchenko expressly hold that the BIA’s exercise of its sua sponte authority “‘is committed to [its] unfettered discreti on . . . and therefore is not subject to judicial
review.’” Barry , 524 F.3d at 723 (quoting Harchenko , 379 F.3d at 410-11). And, as Chief Judge Batchelder has noted, neither cas e relied on § 1252(a)(2)(B)(ii). Gor , 607 F.3d at 195 (Batchelder, C.J., concu rring). Instead, “[t]he Harchenko and Barry panels concluded, as has nearly every other Circuit to consider the question, that the BIA’s exercise of its sua sponte authority was not reviewable because there was simply ‘no law to apply.’” 20 Id. (quoting Citizens to Preserve Overton Park, Inc. v. Volpe , 401 U.S. 402, 410 (1971)). Thus, according to Chief Judge Batchelder, “the firm requirement that only Congress may remove [the courts’] jurisdiction [to review the exercise of that author ity] simply does not exist.” Id.
Put differently, Congress need not designate the BIA’s sua sponte authority as discretionary by statute in order for the Attorn ey General’s regulatory determination that the power is discretionary, see 8 C.F.R. § 1003.2(a), to deprive cour ts of jurisdiction to review its

19 Rais’s statutory-frustration claim may raise a question of law. See supra note 16 and accompanying text; cf. United States v. Cassidy , 899 F.2d 543, 545 (6th Cir. 1990) (“Statutory interpretation is a question of law which this Court reviews de novo .”). Rais’s second claim asserts that the BIA abused its discretion by denying his motion to reopen on jurisdictional grounds and thereby violating “the Government’s stated public policy goals” to “avoid needless separations of families.” But Rais identifies no statutes, regulations, or other legal authorities for the proposition that he has a protectable interest in such goa ls; therefore, the claim does not raise a question of law. 20 As Harchenko explained, “[8 C.F.R. § 1003.2(a)] provides no standard by which to judge the agency’s exercise of discretion. It allows the BIA to reopen pro ceedings in exceptional situations; it does not require the BIA to do so. As such, this court is without jurisdiction to review the BIA’s decision declining to exercise its discretion[.]”). 379 F.3d at 411; see also Barry , 524 F.3d at 723 (quoting this language from Harchenko ).No. 13-3639 Rais v. Holder Page 13

exercise. This is so because “[ t]he power of the BIA to reopen sua sponte arises only from its own regulations.” Gor , 607 F.3d at 195 (Batchelder, C.J., concurring) (second emphasis added). Consequently, Congress’s determination in 8 U. S.C. § 1252(a)(2)(D) that federal courts may review “constitutional claims” and “questions of law” despite “any other provision of [that] chapter,” has no bearing on the ques tion of whether courts may revi ew the BIA’s exercise of its
sua sponte authority, for which no chapter of any legislation provides. And because Barry and
Harchenko hold that the BIA’s exercise of its sua sponte authority is not subject to judicial review, the panel lacks jurisdiction over Rais’s petition even if it a lleges constitutional claims or questions of law.

III. CONCLUSION
Rais failed to satisfy the requirements for filing a second motion to reopen the removal proceedings against him and claims shelter under no exception to those requirements. Consequently, the BIA’s sua sponte authority to grant his motion was the only means by which
he could have obtained relief. Binding circuit precedent, unimpaired by recent Supreme Court case law, establishes that this court does not ha ve jurisdiction to review the BIA’s decision to refrain from exercising that authority. We therefore DISMISS Rais’s petition for judicial review of the BIA’s decision for want of jurisdiction.