                                                                NOT PRECEDENTIAL

                      UNITED STATES COURT OF APPEALS
                           FOR THE THIRD CIRCUIT
                               _______________

                                     No. 12-2197
                                   _______________

                    XINGZHANG CHEN, a/k/a Xing Zhang Chen;
                         SHUYU LU, a/k/a Shu Yu Lu,
                                        Petitioners

                                           v.

                 ATTORNEY GENERAL OF THE UNITED STATES,
                                      Respondent

                                   _______________

                       On Petition for Review of a Final Order
                        of the Board of Immigration Appeals
                      (Nos. A089-908-498 and A077-845-636)
                    Immigration Judge: Honorable Eugene Pugliese
                                  _______________

                      Submitted Under Third Circuit LAR 34.1(a)
                                   April 15, 2013
                                 _______________

             Before: AMBRO, HARDIMAN, and COWEN, Circuit Judges

                             (Opinion filed: April 19, 2013)
                                  _______________

                                      OPINION
                                   _______________

AMBRO, Circuit Judge

      Petitioners—Xingzhang Chen and his wife, Shuyu Lu—are natives and citizens of

the People‟s Republic of China who first entered the United States in 1999 and 2000,
respectively. In August 2009, they were found removable and an Immigration Judge

denied Petitioners‟ application for asylum, withholding of removal, and protection under

the Convention Against Torture. The Board of Immigration Appeals (the “BIA”)

dismissed their appeal, and we subsequently denied their petition for review. In April

2012, Petitioners filed a motion to reopen with the BIA in which they asserted that, due to

their recent conversion to Christianity, they had a newfound fear of persecution based on

their religious practices entitling them to asylum and withholding of removal. The BIA

denied that motion. This petition for review followed.1

       We accord deference to the BIA‟s decisions. Normally, “[w]e review the BIA‟s

denial of a motion to reopen for abuse of discretion, and review its underlying factual

findings related to the motion for substantial evidence.” Filja v. Gonzales, 447 F.3d 241,

251 (3d Cir. 2006) (citations omitted). “However, motions that ask the BIA to reopen

sua sponte a case are of a different character. Because such motions are committed to the

unfettered discretion of the BIA, we lack jurisdiction to review a decision on whether and

how to exercise that discretion.” Pllumi v. Att’y Gen., 642 F.3d 155, 159 (3d Cir. 2011)

(footnote omitted) (citing Calle-Vujiles v. Ashcroft, 320 F.3d 472, 475 (3d Cir. 2003)).2

“[W]e may exercise jurisdiction [over a refusal to reopen] to the limited extent of

recognizing when the BIA has relied on an incorrect legal premise. In such cases we can

remand to the BIA so it may exercise its authority against the correct „legal

1
 We have jurisdiction to review this timely filed petition under 8 U.S.C. § 1252.
2
 As we noted in Pllumi, “[i]t seems a contradiction in terms to speak of motions seeking
sua sponte action, since „sua sponte‟ means the doing of something „without prompting
or suggestion,‟ but that is the terminology.” Id. at 159 n.5 (quoting Black‟s Law
Dictionary 1560 (9th ed. 2009))
                                             2
background.‟” Id. at 160 (quoting Mahmood v. Holder, 570 F.3d 466, 469 (2d Cir.

2009)).

       We do not see legal error justifying remand in this instance. The BIA rejected

Petitioners‟ motion to reopen because they failed to establish a prima facie case for the

relief sought. See Caushi v. Att’y Gen., 436 F.3d 220, 231 (3d Cir. 2006) (“A motion to

reopen may be denied if the BIA determines that . . . the alien has not established a prima

facie case for the relief sought . . . .”). Even if Petitioners had been able to establish a

prima facie case, however, the BIA found that they had not shown the exceptional

circumstances needed to warrant it exercising its discretion to reopen their case. See 8

C.F.R. § 1003.2 (“The [BIA] has discretion to deny a motion to reopen even if the party

moving has made out a prima facie case for relief.”). Though Petitioners argue that the

BIA applied an incorrect legal standard for establishing prima facie eligibility, they do

not point to any alleged legal error in its alternative finding that they failed to show

exceptional circumstances. Because this is not alleged to be predicated on a legal error,

we are without jurisdiction to review this discretionary determination.

       For these reasons, we dismiss this petition for review.




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