                              UNPUBLISHED

                  UNITED STATES COURT OF APPEALS
                      FOR THE FOURTH CIRCUIT


                              No. 09-1097


TUNBOSUN OLAWALE WILLIAM,

                Petitioner,

           v.

ERIC H. HOLDER, JR., Attorney General,

                Respondent.



On Petition for Review of an Order of the Board of Immigration
Appeals.


Argued:   December 2, 2009                  Decided:   December 30, 2009


Before WILKINSON, GREGORY, and DUNCAN, Circuit Judges.


Petition dismissed by unpublished per curiam opinion.


ARGUED: Amy Lamoureux Riella, VINSON & ELKINS, Washington, D.C.,
for   Petitioner.     Woei-Tyng   Daniel   Shieh, UNITED  STATES
DEPARTMENT OF JUSTICE, Washington, D.C., for Respondent.      ON
BRIEF: Craig D. Margolis, Tirzah S. Lollar, VINSON & ELKINS,
Washington, D.C., for Petitioner. Tony West, Assistant Attorney
General, Civil Division, Susan K. Houser, Senior Litigation
Counsel,   Office  of   Immigration   Litigation,  UNITED STATES
DEPARTMENT OF JUSTICE, Washington, D.C., for Respondent.


Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:

        Tunbosun Olawale William (“William”) petitions this court

for review of an order of the Board of Immigration Appeals (the

“BIA”) declining to exercise its sua sponte authority to reopen

his petition for review of his removal proceedings.                      Because our

precedent in Mosere v. Mukasey, 552 F.3d 397 (4th Cir. 2009),

provides that we lack jurisdiction to review the BIA’s refusal

to reopen deportation proceedings sua sponte, we must dismiss

the petition for review. 1



                                               I.

        On    November      28,     1997,      Immigration     and     Naturalization

Services (the “INS”) issued a notice to appear to show cause to

William,       a   native   citizen       of    Nigeria,    alleging    that   he   was

eligible for removal from the United States as an aggravated

felon based on his conviction for receipt of a stolen credit

card.        On March 9, 1998, INS made a motion to amend the notice

to appear, to include an additional charge of removability for

having       committed      a     crime   involving        moral   turpitude.        On


        1
       William argues that                by consistently allowing reopening
where a petitioner has been               removed on the basis of a criminal
conviction that was later                 vacated, the BIA has effectively
cabined its discretion.                    Because we find this argument
unavailing on these facts,                however, we need not resolve that
issue here.



                                               2
September 3, 1998, the immigration judge (the “IJ”) conducted

the removal proceedings, at which he allowed the amendment and

also found William removable for having committed a crime of

moral turpitude.        On November 30, 2000, William sought a waiver

of inadmissibility in order to apply for an adjustment of status

based on a petition filed by his wife.                 On February 19, 2002,

the IJ denied the waiver application, finding William did not

have the required seven years of continuous lawful residence.

On October 15, 2003, the BIA affirmed the IJ’s decision.

    William filed a motion to reconsider, which the BIA denied

on March 29, 2004.          William was removed from the country on July

11, 2005.        On December 21, 2005, William filed a motion to

reopen    with   the    BIA,   asserting      that   the   criminal    conviction

underlying his charge of removability for having committed a

crime of moral turpitude had been vacated by the state court

that entered it on October 24, 2005.                 According to William, he

had filed a writ of error coram nobis, asserting that he had

never been advised of his Fifth Amendment rights against self-

incrimination.     William alleged that the state court vacated his

conviction as a result of that error.

     On February 6, 2006, the BIA refused to consider the motion

to reopen, noting that William had already been removed from the

country   and    that   8    C.F.R.   §   1003.2(d)    barred   a     person   from



                                          3
moving       to   reopen    once     removal       had    been    finalized. 2         William

petitioned this court for review.                        In William v. Gonzales, 499

F.3d 329 (4th Cir. 2007), we held that in light of the Illegal

Immigration Reform and Immigrant Responsibility Act of 1996 (the

“IIRIRA”),        Pub.   L.    No.    104-208,      110     Stat.      3009   (codified     in

scattered sections of 8 U.S.C.), 8 C.F.R. § 1003.2(d) was no

longer valid.            We further held that pursuant to 8 U.S.C. §

1229a(c)(7)(A), an alien had the right to file one motion to

reopen, regardless of whether he is present in the United States

when        the   motion      is     filed.         William,        499      F.3d    at   333.

Accordingly, we granted the petition for review, vacated the

BIA’s       order,    and   remanded     for       further       proceedings        consistent

with the opinion.           Id. at 334.

        On remand, the BIA again denied William’s motion to reopen.

Initially, the BIA noted that after we issued William, it filed

a precedent decision reaffirming the conclusion that 8 C.F.R. §

1003.2(d) was a binding regulation that precluded the BIA from

considering motions to reopen filed by aliens who have left the

country       after    being       ordered    removed.           The   BIA    acknowledged,

however, that William was binding precedent within the Fourth

        2
       8 C.F.R. § 1003.2(d) states, “A motion to reopen or a
motion to reconsider shall not be made by or on behalf of a
person who is the subject of exclusion, deportation, or removal
proceedings subsequent to his or her departure from the United
States.”



                                               4
Circuit.     Upon consideration of the merits of William’s motion,

the   BIA   noted    that       motions     to      reopen    are    disfavored     in   the

interests    of     finality       and    the       conservation     of   administrative

resources.        The BIA further noted that it generally does not

consider motions to reopen that are filed after the ninety-day

deadline.

      The BIA acknowledged its discretionary authority to reopen

cases sua sponte, but stated that it reserves reopening in such

instances    as      an     “extraordinary            remedy       reserved   for    truly

exceptional situations.”                 J.A. 774.       The BIA noted that every

federal court to have considered the question has found that the

BIA’s decision to exercise its sua sponte authority to reopen is

not reviewable.

      The   BIA     then        held   that      vacatur      of    William’s     criminal

conviction    was         not     an     exceptional         circumstance       warranting

reopening.    The BIA stated:

      [W]hen a motion to reopen is filed long after the
      relevant removal order has become final, long after
      the statutory deadline for seeking reopening has
      passed and, indeed, long after the movant has in fact
      been   physically   removed   from   the United   States
      (thereby consummating the removal proceedings in every
      legal sense), we believe the imperative of finality
      forbids   reopening    except   upon   a  showing   that
      enforcement of the removal order would constitute a
      gross miscarriage of justice.

J.A. 775.      The BIA stated that a removal order results in a

gross miscarriage of justice “only if the order clearly could


                                                5
not have withstood judicial scrutiny under the law in effect at

the time of its issuance or execution.”                 Id.   The BIA found that

at the time William’s removal order was entered and William was

removed, the criminal conviction was a valid factual predicate

for his removal.           The BIA further found that William did not

seek to vacate his conviction until after he was removed.                           The

BIA   thus   noted   that    because      William      “sle[pt]    on   his   rights”

until after his removal, the enforcement of the order of removal

was not a miscarriage of justice.               J.A. 776 (internal quotations

omitted) (alterations in original).

       The BIA did state that a vacatur of a criminal conviction

can sometimes justify invocation of its sua sponte reopening

authority.       Specifically, the BIA noted that the result might

have been different if William sought vacatur before his removal

or    if   the   vacatur    was   based    on    new    evidence    that      was   not

reasonably available until after he was removed.                    The Board then

noted that in this case, even if it had granted the motion to

reopen, William would not have been able to regain his lawful

permanent resident status.         The BIA stated:

       [E]ven were we to grant the respondent’s motion he
       could   not  return   to  this   country  except   upon
       compliance   with    the   [Department   of    Homeland
       Security’s] documentary and “admission” requirements,
       matters wholly out of our control, at least in the
       first instance.     As the DHS notes in its brief,
       however, such admission would not be available to the
       respondent, absent a waiver, because his 2005 removal


                                          6
     precludes him from seeking admission for a period of
     10 years. 3

J.A. 776.

     The BIA therefore denied William’s motion to reopen and

declined    to   reopen   the    matter       sua   sponte.       William   filed   a

timely petition for review.



                                      II.

     William argues that the BIA erred in refusing to exercise

its discretion to reopen his case sua sponte. 4                        8 C.F.R. §

1003.2(a) states in relevant part, “The [BIA] may at any time

reopen or reconsider on its own motion any case in which it has

rendered a decision.” 5         In Mosere v. Mukasey, 552 F.3d 397 (4th


     3
       The “requirements” refer to the fact that William, having
been outside the United States more than 180 days, would be
seeking “admission” and, having been ordered removed, could not
receive it for ten years after removal.         See 8 U.S.C. §
1182(a)(9)(ii)(I).    The “waiver” refers to a discretionary
waiver under former § 212 of the Immigration and Naturalization
Act (the “INA”), which was repealed by the IIRIRA.     Massis v.
Mukasey, 549 F.3d 631, 633 n.1 (4th Cir. 2008).
     4
        William does not challenge                  the   BIA’s    denial   of   his
untimely motion to reopen.
     5
        The agency regulation 8 C.F.R. § 1003.2(a) is not
expressly based on statute.      Indeed, “no statutory language
authorizes the BIA to reconsider a deportation proceeding sua
sponte.”   Belay-Gebru v. I.N.S., 327 F.3d 998, 1001 (10th Cir.
2003); see also Tamenut, 521 F.3d at 1004.    Nevertheless, ten
federal courts of appeals, including ours, have held that the
decision to reopen is not disallowed but rather a matter of
agency discretion.



                                          7
Cir. 2009), we considered this very regulation, and noted that

it “provides no guidance as to the BIA’s appropriate course of

action, sets forth no factors . . . , places no constraints on

the BIA’s discretion, and specifies no standards for a court to

use to cabin the BIA’s discretion.”                  Mosere, 552 F.3d at 401

(quoting Tamenut v. Mukasey, 521 F.3d 1000, 1004-05 (8th Cir.

2008) (en banc) (per curiam)).              We therefore found that section

1003.2(a) lacked any meaningful standards by which to judge the

BIA’s exercise of its discretion, and so found that we lacked

jurisdiction      to   review    the      BIA’s      refusal    to    reopen      the

petitioner’s case sua sponte.          Mosere, 552 F.3d at 401.

      The   conclusion   we     reached     in    Mosere   comported       with   the

collective view of the First, Second, Third, Fifth, Seventh,

Eighth, Ninth, Tenth, and Eleventh Circuits.                   See id. at 400-01

(collecting cases).      This view reflects the fact that “review is

not to be had if the statute is drawn so that a court would have

no   meaningful    standard     against      which    to   judge     the   agency’s

exercise of discretion.”         Heckler v. Chaney, 470 U.S. 821, 830

(1985).     We are therefore compelled to conclude that the BIA’s

decision in this case is also unreviewable.




                                        8
                                III.

    For   the   foregoing   reason,   we   dismiss   the   petition   for

review.

                                                     PETITION DISMISSED




                                  9
