                                                               NOT PRECEDENTIAL

                       UNITED STATES COURT OF APPEALS
                            FOR THE THIRD CIRCUIT
                                 ___________

                                       No. 14-3911
                                       ___________

                                 KWAME DWUMAAH,
                                 a/k/a Simon Dwumaah
                                                    Petitioner

                                             v.

              ATTORNEY GENERAL UNITED STATES OF AMERICA,
                                                    Respondent
                   ____________________________________

                      On Petition for Review of an Order of the
                            Board of Immigration Appeals
                             (Agency No. A075-462-772)
                 Immigration Judge: Honorable Roxanne Hladylowycz
                    ____________________________________

                    Submitted Pursuant to Third Circuit LAR 34.1(a)
                                    May 21, 2015

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

                              (Opinion filed: June 10, 2015)
                                     ___________

                                        OPINION*
                                       ___________

PER CURIAM

       Kwame Dwumaah1 petitions for review of the order of the Board of Immigration

*
 This disposition is not an opinion of the full Court and pursuant to I.O.P. 5.7 does not
constitute binding precedent.
Appeals (“BIA”) denying his motion for reconsideration. We will deny the petition.

                                             I.

       Dwumaah is a citizen of Ghana. In 2007, an Immigration Judge (“IJ”) ordered his

removal to Ghana on the ground that he falsely represented himself to be a United States

citizen in three student loan applications. 8 U.S.C. § 1227(a)(3)(D)(i). The BIA

dismissed his appeal on the merits. We denied his petition for review because substantial

evidence supported the IJ’s finding that Dwumaah made the representations. See

Dwumaah v. Att’y Gen., 609 F.3d 586, 589-90 (3d Cir. 2010) (per curiam) (C.A. No. 09-

4140). The IJ also denied Dwumaah’s application for cancellation of removal, but he did

not challenge that issue on review and we deemed it waived. See id. at 589 n.3.

       In 2011, the BIA reopened Dwumaah’s proceeding and remanded for the IJ to

reconsider cancellation in light of additional evidence. The IJ again denied cancellation,

and the BIA dismissed Dwumaah’s appeal on the merits on January 22, 2014. Dwumaah

did not petition for review. Instead, he filed a motion with the BIA asking it to

reconsider its decision and to reopen his proceeding on the basis of evidence purportedly

showing that he is not removable because he timely retracted his misrepresentations of

citizenship in a subsequent student loan application in 1999.

       On June 27, 2014, and as relevant here, the BIA denied reopening because the

evidence on which Dwumaah relied was previously available and because he did not

present an “exceptional situation” warranting reopening sua sponte. Dwumaah once


1
 The petitioner’s last name appears as “Dwvmaah” on the Agency’s and this Court’s
captions, but the parties refer to him as “Dwumaah” and we will do the same.
                                             2
again did not petition for review and instead filed another motion for reconsideration with

the BIA. The BIA denied that motion on September 9, 2014, after finding no error in its

previous decision. Dwumaah now petitions for review.2

                                             II.

       The BIA’s September 9 order denying reconsideration is the only order before us

for review, but determining whether the BIA abused its discretion in denying

reconsideration “requires some review of [its] underlying decision” of June 27 denying

reopening. Castro v. Att’y Gen., 671 F.3d 356, 364 (3d Cir. 2012) (quotation marks

omitted). Thus, the specific question before us is whether the BIA abused its discretion

in declining to reconsider its order of June 27, in which it declined to reopen Dwumaah’s

proceeding on the ground that the evidence on which he relied was previously available.

       It did not. The IJ found Dwumaah removable because he checked a box on three

student loan applications claiming to be a United States citizen. Dwumaah now argues

that he retracted these representations by later checking a box on a 1999 application

stating that he was not a United States citizen.3 The evidence on which he relies consists


2
  We have jurisdiction under 8 U.S.C. § 1252 to review the BIA’s denial of a motion for
reconsideration, see Pllumi v. Att’y Gen., 642 F.3d 155, 160 n.9 (3d Cir. 2011), but, as
explained below, we lack jurisdiction to the extent that the BIA’s ruling implicates its
discretion to deny reopening sua sponte. To the extent that we have jurisdiction, we
review the BIA’s denial of reconsideration only for abuse of discretion. See id. at 158.
3
  Dwumaah also advances several subsidiary arguments. He argues that, because he
retracted his false representations, the applications containing those representations are
not “reliable” evidence and the IJ denied him due process in relying on them under
Ezeagwuna v. Ashcroft, 325 F.3d 396 (3d Cir. 2003). Dwumaah also argues that the
Government’s decision to charge him as removable for making the allegedly retracted
statements constitutes misconduct warranting nunc pro tunc relief under Cheruku v.
                                             3
of the 1999 application and a Government-prepared timeline of the relevant events.

(A.R. 145-46, 160.) The Government, however, submitted those documents to the IJ

before Dwumaah’s initial hearing. (A.R. 1557-58, 1572.) The documents that Dwumaah

submitted to the BIA also bear page numbers 805-06 and 820, which reflect their

presence in the administrative record previously filed in C.A. No. 09-4140. Thus, the

BIA properly concluded that reopening was not warranted because Dwumaah’s evidence

is not new. See 8 C.F.R. § 1003.2(c)(1).4

       In the absence of new evidence, the only potential ground for the BIA to reopen

would be to do so sua sponte, which it generally does only in “exceptional situation[s].”

Cruz v. Att’y Gen., 452 F.3d 240, 249 (3d Cir. 2006) (quotation marks omitted). The

BIA concluded in its June 27 order that Dwumaah did not present an exceptional

situation, and Dwumaah challenges the BIA’s refusal to reconsider that ruling as well.

We generally lack jurisdiction, however, to review the BIA’s exercise of its unfettered

discretion to deny reopening sua sponte. See Pllumi, 642 F.3d at 159. We have

jurisdiction to review such rulings only when the BIA has provided some basis by which


Attorney General, 662 F.3d 198 (3d Cir. 2011). We need not separately address these or
Dwumaah’s other subsidiary arguments.
4
  The BIA did not mention this point, but Dwumaah’s timely-retraction argument is not
new either. In addition to petitioning for review of the BIA’s initial order in 2009,
Dwumaah filed a motion with the BIA to reconsider that order. Dwumaah later raised his
timely-retraction argument in an “updated supplemental” motion. (A.R. 740-42.) The
BIA denied reconsideration on April 29, 2010, shortly after we decided C.A. No. 09-
4140, but Dwumaah did not petition for review of that ruling. Although we do not reach
the merits of Dwumaah’s timely-retraction argument, we note that he cites no evidence
(old or new) that his alleged retraction in fact was timely. See Eid v. Thompson, 740
F.3d 118, 125 (3d Cir.), cert. denied, 135 S. Ct. 175 (2014).
                                            4
to measure its exercise of discretion, such as when its decision reveals that it was based

on a misapprehension of the law, see id. at 159-60, or when the BIA has adopted a

general policy governing its exercise of discretion, see Cruz, 452 F.3d at 249. These

considerations apply even though we are reviewing the BIA’s refusal to reconsider its

denial of reopening sua sponte rather than the denial of reopening itself. See Charuc v.

Holder, 737 F.3d 113, 115 (1st Cir. 2013).

       Dwumaah’s sole reliance on previously available evidence and arguments does not

implicate either situation. Dwumaah relies on Cruz for the proposition that the BIA has

established a policy of reopening when an alien is “no longer removable.” Cruz, 452

F.3d at 247. In addition to declining to resolve that issue, however, Cruz involved an

alien who sought reopening because the criminal conviction forming the basis for his

order of removal had been vacated, see id., not an alien like Dwumaah who seeks merely

to advance previously available arguments. Not surprisingly, neither Cruz nor any other

authority suggests that the BIA has a general policy of reopening for that purpose.

       For these reasons, we will deny the petition for review.




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