                                                                                                                           Opinions of the United
2007 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


7-31-2007

Fang v. Atty Gen USA
Precedential or Non-Precedential: Non-Precedential

Docket No. 06-2220




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                                             NOT PRECEDENTIAL

       UNITED STATES COURT OF APPEALS
            FOR THE THIRD CIRCUIT


                     No. 06-2220


                    HONG FANG,

                       Petitioner

                           v.

  ATTORNEY GENERAL OF THE UNITED STATES




             Petition for Review of an Order
          of the Board of Immigration Appeals
                    No. A78-066-348
         Immigration Judge: Craig DeBernardis


       Submitted Under Third Circuit LAR 34.1(a)

                     July 12, 2007

Before: SLOVITER, ALDISERT and ROTH, Circuit Judges.

                 (Filed July 31, 2007)
                               OPINION OF THE COURT
                                   _____________


ALDISERT, Circuit Judge.

       Hong Fang, a native and citizen of the People’s Republic of China, petitions for

review of a final order of the Board of Immigration Appeals (“BIA” or “Board”). Fang

contends that the Board abused its discretion in denying her untimely-filed motion to

reopen. We conclude that Fang’s argument lacks merit and, accordingly, we will deny the

Petition.

                                             I.

       The parties are familiar with the facts and proceedings before the BIA and the IJ,

so we will only briefly revisit them here. Fang, a 28-year-old Chinese national, illegally

entered the United States on October 20, 1999. On March 23, 2001, she filed an

application for asylum, withholding of removal and protection under the Convention

Against Torture (“CAT”), arguing that she faced persecution under China’s family

planning policies. After a short hearing, an Immigration Judge (“IJ”) found Petitioner’s

testimony implausible and denied her application on all grounds. Fang then appealed to

the BIA.

       On July 11, 2002, with her appeal to the BIA still pending, Fang married a lawful

permanent resident. On account of the marriage, Fang became eligible for legal status in



                                             2
the United States and, accordingly, she filed a motion to remand the removal proceedings.

On October 15, 2002, the BIA denied the motion to remand for lack of “clear and

convincing evidence indicating a strong likelihood that the marriage is bona fide.” App.

7. The Board simultaneously affirmed the IJ’s decision to deny the application for

asylum, withholding of removal, and protection under CAT.

       More than three years later, Fang moved to reopen her removal proceedings on the

ground that her husband had become a naturalized U.S. citizen. Fang argued that “the

marriage between the parties is bona fide” and that the BIA should reopen her case

because she “has an immediate immigration benefit available to her.” App. 5. The Board

denied the Motion as untimely. It noted that any such motion had to be filed within 90

days of the date of its final order. Fang now petitions this Court to review the BIA’s

decision. We have jurisdiction to hear the Petition under 8 U.S.C. § 1252. See Cruz v.

Attorney General of the United States, 452 F.3d 240, 246 (3d Cir. 2006).

                                              II.

       We begin our analysis with a brief discussion of the appropriate scope and

standard of review. We review the Board’s decision to deny a motion to reopen under the

highly deferential “abuse of discretion” standard. INS v. Abudu, 485 U.S. 94, 105

(1988); Guo v. Ashcroft, 386 F.3d 556, 562 (3d Cir. 2004). The BIA’s determination

“will not be disturbed unless [it] is found to be arbitrary, irrational, or contrary to law.”

Guo, 386 F.3d at 562.



                                               3
                                             III.

       Fang argues that the BIA gave no rational explanation for its decision to deny her

Motion to Reopen. This argument is utterly devoid of merit. The BIA’s order states,

plainly, that it denied Fang’s motion because it was filed “out of time.” App. 3. The

Board’s actions are well supported by the law. Motions to reopen must be filed no later

than 90 days after the BIA renders its final administrative decision. See 8 C.F.R. §

3.2(b)-(c). In this case the Board’s final order affirming the decision of the Immigration

Judge was entered on October 15, 2002. Petitioner did not file her motion until February

8, 2006, more than three years after that deadline. Accordingly, we cannot say that the

BIA committed an abuse of discretion by denying Fang’s motion to reopen. See, e.g.,

Barker v. Ashcroft, 382 F.3d 313, 315-316 (3d Cir. 2003) (holding that the BIA retains

discretion in applying statutory deadlines, and its denial of petitioner’s untimely motion

was in no way arbitrary, irrational or contrary to law).

                                             IV.

       Fang argues, however, that the untimeliness determination is not the end of the

road for her Petition. Subsection 3.2(a) of the Regulations allows the BIA to reopen a

case at any time. It provides:

              (a) . . . The Board may at any time reopen or reconsider on its own motion
              any case in which it has rendered a decision. A request to reopen or
              reconsider any case in which a decision has been made by the Board, which
              request is made by the Service, or by the party affected by the decision,
              must be in the form of a written motion to the Board. The decision to grant
              or deny a motion to reopen or reconsider is within the discretion of the

                                              4
              Board, subject to the restrictions of this section. The Board has discretion to
              deny a motion to reopen even if the party moving has made out a prima
              facie case for relief.

Id. The BIA has established that it will consider reopening a case with its sua sponte

authority in “exceptional situations.” In re J-J-, 21 I. & N. Dec. 976 (BIA 1997). Fang

complains that the Board should have used these sua sponte powers to grant her motion to

reopen.

       In response, the government contends that we do not have jurisdiction to hear

Petitioner’s argument on this issue because she did not raise it before the BIA. We agree.

As a general rule, an alien must exhaust all of her administrative remedies before raising

a claim before this Court. See 8 U.S.C. § 1252(d)(1); Yan Lan Wu v. Ashcroft, 393 F.3d

418, 422 (3d Cir. 2005). To exhaust a claim, an alien must first raise the issue before the

BIA, Alleyne v. INS, 879 F.2d 1177, 1182 (3d Cir. 1989), so as to give the Board “the

opportunity to resolve a controversy or correct its own errors before judicial

intervention.” Zara v. Ashcroft, 383 F.3d 927, 931 (9th Cir. 2004). This principle applies

to parties seeking review of the BIA’s failure to grant sua sponte relief pursuant to §

3.2(a). See Wang v. Ashcroft, 260 F.3d 448, 453 (5th Cir. 2001) (holding that “a party

that seeks to challenge on appeal the failure to act sua sponte must sufficiently raise the

issue in the first instance before the agency”); Luis v. INS, 196 F.3d 36, 40 (1st Cir. 1999)

(finding that an alien failed to exhaust her administrative remedies when she did not ask

the Board to invoke its sua sponte authority in her motion to reopen).



                                              5
       After a thorough search of the record, we find no evidence that Fang presented the

BIA with any argument that exceptional circumstances warranted the exercise of the

BIA’s power under § 3.2(a). Nowhere in her February 6, 2006 Motion to Reopen did she

mention sua sponte review or anything that may be construed as asking for sua sponte

relief. Accordingly, we lack jurisdiction to consider the issue on appeal.

                                        ******

       We have considered all of the arguments advanced by the parties and conclude that

no further discussion is necessary. Accordingly, the Petition for Review will be denied.




                                             6
