                                                                 NOT PRECEDENTIAL

                        UNITED STATES COURT OF APPEALS
                             FOR THE THIRD CIRCUIT
                                  ___________

                                        No. 14-1331
                                        ___________

                                  MOZAMMAL HOQUE,
                                               Petitioner

                                              v.

          ATTORNEY GENERAL OF THE UNITED STATES OF AMERICA,
                                             Respondent
                  ____________________________________

                        On Petition for Review of an Order of the
                             Board of Immigration Appeals
                             (Agency No.: A073-048-883)
                      Immigration Judge: Honorable Mirlande Tadal
                       ____________________________________

                     Submitted Pursuant to Third Circuit LAR 34.1(a)
                                     July 16, 2014

        Before: RENDELL, GREENAWAY, JR. and ALDISERT, Circuit Judges

                               (Opinion filed: July 17, 2014)
                                      ___________

                                        O P I NI O N
                                        ___________


PER CURIAM

       Mozammal Hoque petitions for review of the Board of Immigration Appeals’

(“BIA”) decision declining to reopen his removal proceedings sua sponte. For the

reasons that follow, we will dismiss the petition in part and deny it in part.


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                                             I.

       Because we write primarily for the parties, who are familiar with the background

of this case, we discuss that background only briefly here. Hoque is a citizen of

Bangladesh who entered the United States in 1993. Removal proceedings were initiated

against him in 1999, but those proceedings were administratively closed in 2003. In

2011, the Department of Homeland Security (“DHS”) successfully moved to recalendar

the proceedings and change venue from New York, New York, to York, Pennsylvania.

DHS then filed an additional charge of removability — the original charge was for being

present in the United States without having been admitted or paroled, see 8 U.S.C.

§ 1182(a)(6)(A)(i) — asserting that he had been convicted of a crime involving moral

turpitude, see 8 U.S.C. § 1182(a)(2)(A)(i)(I).

       Hoque conceded the original charge of removability and the Immigration Judge

(“IJ”) sustained the added charge. Hoque then applied for asylum, withholding of

removal, and relief under the Convention Against Torture. The IJ denied that application

and the BIA dismissed his appeal. Hoque did not petition for review of that dismissal.

       Thereafter, in July 2013, Hoque married Zarzina Tanvir, a lawful permanent

resident of the United States and the mother of his two United States citizen children.

The following month, Tanvir filed an I-130 Petition for Alien Relative on Hoque’s behalf

with United States Citizenship and Immigration Services. With that petition pending,

Hoque moved the BIA to reopen his removal proceedings so that he could seek

adjustment of status. On January 16, 2014, the BIA denied the motion, concluding that it

was untimely, and “declin[ing] to exercise [its] discretionary authority to reopen and


                                             2
remand or terminate these proceedings sua sponte.” (A.R. at 3.) In reaching this

conclusion, the BIA noted that Hoque did not appear to be prima facie eligible for

adjustment of status because the IJ’s finding that Hoque had been convicted of a crime

involving moral turpitude rendered him inadmissible to the United States. The BIA

continued:

              And even if [Hoque] is not so inadmissible, or is eligible for a
              waiver of such inadmissibility, becoming eligible or
              potentially eligible for relief after a final administrative order
              has been entered is common and does not, in itself, constitute
              an exceptional circumstance warranting consideration of an
              untimely motion to reopen. While we acknowledge that
              [Hoque’s] removal to Bangladesh may result in hardship to
              his lawful permanent resident spouse and two United States
              citizen children, we do not find exceptional circumstances in
              this case that would warrant sua sponte reopening of these
              proceedings.

(Id.)

        Hoque now seeks review of the BIA’s denial of sua sponte reopening. The

Government argues that this denial is unreviewable and that the petition for review

should be dismissed for lack of jurisdiction.

                                                II.

        Because a motion for sua sponte reopening is “committed to the unfettered

discretion of the BIA,” Pllumi v. Att’y Gen., 642 F.3d 155, 159 (3d Cir. 2011), we

generally lack jurisdiction to review the BIA’s denial of such a motion, id. at 160. That

said, “we may exercise jurisdiction to the limited extent of recognizing when the BIA has

relied on an incorrect legal premise.” Id. We also have jurisdiction to review

constitutional claims. See 8 U.S.C. § 1252(a)(2)(D).


                                                3
       Here, Hoque argues that the BIA “made a fundamental misapprehension of law”

when it concluded that he did not appear to be prima facie eligible for adjustment of

status. (Pet’r’s Br. 12.) He also claims that the BIA “did not fully consider the record as

a whole.” (Id. at 13.) If the BIA’s denial of sua sponte reopening had hinged on its legal

determination about Hoque’s eligibility for adjustment of status, we would have

jurisdiction to review that denial. See Pllumi, 642 F.3d at 160. But that was not actually

the case. The BIA made it clear that, regardless of whether he was eligible for

adjustment of status, there were no exceptional circumstances warranting sua sponte

reopening of his case. In reaching this conclusion, the BIA did not rely on a legal

premise or articulate some meaningful standard; rather, we read its opinion as simply

exercising its unfettered discretion. We lack jurisdiction over that exercise of discretion.

See id. at 159. Although we retain jurisdiction over Hoque’s argument that the BIA

failed to consider the entire record — at least to the extent that this argument presents a

due process challenge — there is no indication that the BIA actually failed to consider the

entire record in making its decision. Hoque focuses on the BIA’s use of the phrase

“[a]nd even if,” but we are at a loss as to how that demonstrates that the BIA failed to

consider the entire record.

       In light of the above, we will dismiss the petition in part and deny it in part.




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