                                                           FILED
                                               United States Court of Appeals
                UNITED STATES COURT OF APPEALS         Tenth Circuit

                       FOR THE TENTH CIRCUIT                      February 23, 2016
                       _________________________________
                                                                 Elisabeth A. Shumaker
                                                                     Clerk of Court
LUZ DEL CARMEN
MORONES-QUINONES,

       Petitioner,

v.                                                    No. 15-9545
                                                 (Petition for Review)
LORETTA E. LYNCH,
United States Attorney General,

       Respondent.
                       _________________________________

                       ORDER AND JUDGMENT *
                       _________________________________

Before GORSUCH, McKAY, and BACHARACH, Circuit Judges.
                 _________________________________

      Ms. Luz del Carmen Morones-Quinones was ordered removed. She

asked the Board of Immigration Appeals to reopen the removal proceedings

sua sponte so that she could request adjustment of status. 1 The Board


*
       The parties have not requested oral argument, and we do not believe
oral argument would be helpful. As a result, we are deciding the appeal on
the briefs. See Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1(G).

      This order and judgment does not constitute binding precedent except
under the doctrines of law of the case, res judicata, and collateral estoppel.
But the order and judgment may be cited for its persuasive value under
Fed. R. App. P. 32.1(a) and 10th Cir. R. 32.1(A).
1
     Ms. Morones-Quinones asked for relief sua sponte because she had
missed the 90-day deadline for filing a motion to reopen. See 8 U.S.C.
§ 1229a(c)(7)(C). After the 90-day deadline expired, “the only avenue of
declined to reopen the removal proceedings. Rather than file a petition for

review, she moved for reconsideration. This motion was denied, prompting

Ms. Morones-Quinones to file a petition for review of the denial of

reconsideration and to seek leave to proceed in forma pauperis. We dismiss

the petition, but grant leave to proceed in forma pauperis.

     Petition for Review. We generally have jurisdiction to consider a

motion to reconsider. See Mata v. Lynch, ___ U.S. ___, 135 S. Ct. 2150,

2154 (2015). In the motion, however, Ms. Morones-Quinones relies on an

alleged error by the Board in declining to sua sponte reopen the removal

proceedings. 2 We lack jurisdiction to entertain that argument. Accordingly,

we dismiss the petition for review.

     Ms. Morones-Quinones acknowledges that we have held in

precedential opinions that we lack jurisdiction to consider whether the

Board erred in declining to reopen the proceedings sua sponte. See

Infanzon v. Ashcroft, 386 F.3d 1359, 1361 (10th Cir. 2004); Belay-Gebru v.

INS, 327 F.3d 998, 1001 (10th Cir. 2003). But Ms. Morones-Quinones

argues that the Supreme Court overruled these precedents in Kucana v.

Holder, 558 U.S. 233 (2010). We disagree.

relief is for the [Board of Immigration Appeals] to reopen proceedings sua
sponte.” Gor v. Holder, 607 F.3d 180, 198 (6th Cir. 2010); see also
8 C.F.R. § 1003.2(a) (stating that the Board of Immigration Appeals can
reopen a case on its own at any time).
2
      In the motion, she also relies on a change in the law after the denial
of her motion to reopen. But she does not raise this argument in our court.
                                      2
      Kucana addressed 8 U.S.C. § 1252(a)(2)(B), which precludes judicial

review of discretionary denials of relief. The Kucana Court held that

§ 1252(a)(2)(B) does not deprive the courts of jurisdiction to review the

Board’s decisions on motions to reopen because those decisions are

discretionary by regulation, not statute. 558 U.S. at 237, 253. But in

Kucana, the Supreme Court noted that its issue did not involve sua sponte

reopening. Id. at 251 n.18. On that issue, the Court stated that it

“express[ed] no opinion on whether federal courts may review the Board’s

decision not to reopen removal proceedings sua sponte.” Id.; see also Mata

v. Lynch, ___ U.S. ___, 135 S. Ct. 2150, 2155 (2015) (noting that the

question was reserved in Kucana and assuming arguendo that the court of

appeals had correctly held that it lacked authority to review the Board’s

refusal to reopen sua sponte).

      Because the Kucana Court expressed no opinion on our issue,

we are bound by our precedents, which hold that we lack jurisdiction

to consider whether the Board erred when declining to reopen

removal proceedings sua sponte. See In re Smith, 10 F.3d 723, 724

(10th Cir. 1993) (per curiam) (“We are bound by the precedent of

prior panels absent en banc reconsideration or a superseding contrary

decision by the Supreme Court.”). Under these precedents, we lack

jurisdiction to consider whether the Board should have sua sponte

reopened Ms. Morones-Quinones’ removal proceedings. See Infanzon

                                      3
v. Ashcroft, 386 F.3d 1359, 1361 (10th Cir. 2004); Belay-Gebru v.

INS, 327 F.3d 998, 1001 (10th Cir. 2003). Thus, we dismiss the

petition for review.

      Motion for Leave to Proceed in Forma Pauperis. Because

Ms. Morones-Quinones cannot afford to prepay the filing fee, we grant her

motion for leave to proceed in forma pauperis. With this status, Ms.

Morones-Quinones is relieved of her obligation to prepay the filing fee.

See 28 U.S.C. § 1915(a)(1). But she remains obligated to pay the filing fee.

Brown v. Eppler, 725 F.3d 1221, 1230-31 (10th Cir. 2013).

                                   Entered for the Court



                                   Robert E. Bacharach
                                   Circuit Judge




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