                                                NOT PRECEDENTIAL

                 UNITED STATES COURT OF APPEALS
                      FOR THE THIRD CIRCUIT
                           ___________

                               No. 13-1145
                               ___________

                           EMMANUEL ANIM,
                  a/k/a Charlse Anim a/k/a Enoch Roberts,
                                                            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. A047-376-232)
                 Immigration Judge: Honorable Barbara A. Nelson
                 ____________________________________

                Submitted Pursuant to Third Circuit LAR 34.1(a)
                                   June 19, 2013
      Before: SMITH, GREENAWAY, JR. and SHWARTZ, Circuit Judges

                       (Opinion filed: July 19, 2013)
                                _________

                                OPINION
                                _________

PER CURIAM

    In 2011, Emmanuel Anim, a citizen of Ghana, was charged with (and conceded)




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removability pursuant to 8 U.S.C. § 1227(a)(1)(A).1 He sought relief via an application for

cancellation of removal. See 8 U.S.C. § 1229b(b). An Immigration Judge held, in part, that

Anim was not entitled to relief as a matter of discretion. See Administrative Record (A.R.)

55–56. The Board of Immigration Appeals (BIA) dismissed Anim‟s appeal, affirming the

decision on discretionary grounds while declining to comment upon Anim‟s statutory

eligibility. A.R. 37. According to the BIA, Anim‟s “past immigration fraud” was a “serious

adverse factor” that was not counterbalanced by his “expression of remorse and alleged

cooperation with authorities.”      A.R. 38.     In passing, the BIA disputed Anim‟s assertion

(expressed in his appellate brief before the agency) that his naturalization fraud was

“victimless.” A.R. 38 (referencing A.R. 73).

       Anim did not petition for review, filing instead a timely motion to reopen. 2 See 8

C.F.R. § 1003.2(c). In it, he disavowed his prior description of his offense as “victimless.”

A.R. 21. Anim attached three pertinent exhibits: an affidavit that, inter alia, blamed the

“victimless” aside on prior counsel; a letter from his son to the District Judge in his criminal

case; and a letter from his pastor. A.R. 26–34.

       The BIA denied the motion, in part because Anim “ha[d] not shown that the evidence he

wishes to present, including letters of support from his son and pastor . . . was unavailable at

the removal hearing.” Otherwise, “[t]o the extent that [the] affidavit could be considered new

and previously unavailable evidence, it [wa]s insufficient to warrant reopening of these

1
  The removal proceedings followed Anim‟s conviction in federal court for naturalization fraud. See
S.D.N.Y. Crim. No. 1:11-cr-00042.
2
 Because he did not file a timely petition for review of the BIA‟s merits decision, it is not before us.
Castro v. Att‟y Gen., 671 F.3d 356, 364 (3d Cir. 2012).
                                                   2
proceedings.”    A.R. 4.   Furthermore, the BIA indicated that it had “already considered

[Anim‟s] expressions of remorse,” but had found him “undeserving of discretionary relief,

after taking into account all relevant factors.” A.R. 4. Anim‟s request for reopening sua

sponte also was denied. This petition for review followed.

       “[B]efore we reach the merits of this appeal, we first must consider our jurisdiction.”

United States v. Jones, 994 F.2d 1051, 1054 (3d Cir. 1993); see also Kreider v. Cole, 149 F.

647, 649 (3d Cir. 1907). The discretionary denial of cancellation of removal is not subject to

judicial review. See 8 U.S.C. § 1252(a)(2)(B)(i); Reynoso v. Holder, 711 F.3d 199, 210 (1st

Cir. 2013); Patel v. Att‟y Gen., 619 F.3d 230, 232 (3d Cir. 2010). Restrictions on appellate

jurisdiction generally apply with equal force to the review of motions to reopen arising out of

discretionary decisions. See Sorcia v. Holder, 643 F.3d 117, 119 (4th Cir. 2011); Fernandez v.

Gonzales, 439 F.3d 592, 601 (9th Cir. 2006). However, we retain jurisdiction to review

“colorable” constitutional claims or questions of law. See 8 U.S.C. § 1252(a)(2)(D); Pareja v.

Att‟y Gen., 615 F.3d 180, 186–87 (3d Cir. 2010). Thus, we may review a denial of a motion to

reopen if the agency‟s action was contrary to law or rose to the level of a denial of due process,

and did not otherwise rely on a discretionary rationale. See, e.g., Alzainati v. Holder, 568 F.3d

844, 850 (10th Cir. 2009) (“[I]f, in deciding a motion to reopen, the BIA refuses, contrary to

established procedures, to consider new and pertinent evidence, due process rights are

implicated.”).

       Anim argues that the BIA erred by characterizing his affidavit as evidence that was

previously available (he does not allege that the agency‟s rejection of the two letters was also

error). However, as discussed supra, the BIA explicitly held that it would have reached the

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same discretionary decision even if the affidavit were “new.” Thus, to the extent that this

claim could be characterized as a legal argument, it cannot lead to relief, is not colorable, and

does not bring the BIA‟s decision within our jurisdiction. Cf. Bachynskyy v. Holder, 668 F.3d

412, 420 (7th Cir. 2011).

       Anim also maintains that the BIA erred by failing to exercise its sua sponte authority to

reopen. “Because the BIA retains unfettered discretion to decline to sua sponte reopen or

reconsider a deportation proceeding, this court is without jurisdiction to review a decision

declining to exercise such discretion to reopen or reconsider the case.” Desai v. Att‟y Gen.,

695 F.3d 267, 269 (3d Cir. 2012) (internal quotation marks and citation omitted). Under two

narrow exceptions to this rule, a decision to deny sua sponte relief can be reviewed if it is

based on an incorrect legal premise, see id., or if the BIA has “restricted the exercise of its

discretion by establishing a „general policy‟ of reopening sua sponte” under specific

circumstances, Cruz v. Att‟y Gen., 452 F.3d 240, 249 (3d Cir. 2006). Neither exception

applies here.

       For the foregoing reasons, we lack jurisdiction over this petition for review.

Accordingly, we will dismiss it.




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