IMG-181                                                        NOT PRECEDENTIAL

                       UNITED STATES COURT OF APPEALS
                            FOR THE THIRD CIRCUIT
                                 ___________

                                      No. 09-2640
                                      ___________

                                   AVNI JAHJAGA,
                                                       Petitioner

                                            v.

                 ATTORNEY GENERAL OF THE UNITED STATES,
                                                    Respondent
                    ____________________________________

                       On Petition for Review of an Order of the
                            Board of Immigration Appeals
                             (Agency No. A079-453-765)
                     Immigration Judge: Honorable Eugene Pugliese
                      ____________________________________

                 Submitted Pursuant to Third Circuit LAR 34.1(a)
                                 April 28, 2010
      Before: MCKEE, Chief Judge, HARDIMAN AND COWEN, Circuit Judges

                              (Opinion filed: July 30, 2010)

                                      ___________

                                       OPINION
                                      ___________

PER CURIAM

      Avni Jahjaga petitions for review of the removal order issued by the Board of

Immigration Appeals (“BIA”) denying his motion to reopen requesting asylum on

humanitarian grounds. For the reasons set forth below, we will dismiss the petition for
lack of jurisdiction.

       The facts and procedural travel of this case are well-known to the parties and have

been recounted in our previous decision, Jahjaga v. United States Attorney General, 512

F.3d 80 (3d Cir. 2008). Jahjaga is a native of Serbian Montenegro and citizen of Kosovo

whose applications for asylum and other relief were denied after a removal hearing in

2003. The Board affirmed the IJ’s denial of asylum relief in 2005 based on the lack of

sufficient documentary evidence to support Jahjaga’s claim that he was shot in the spine

in 1999 (rendering him paraplegic) on account of his political activities as a ranking

member of the Democratic League of Kosovo (“DLK”). Instead of filing a petition for

review, Jahjaga filed a motion to reopen in which he supplied the corroborating evidence

that the BIA had identified as central to his asylum claim. The Board denied reopening in

August 2005, ruling that the documentary evidence was not new because it was

reasonably available before the hearing, and it was insufficient to show changed country

conditions. The Board denied Jahjaga’s second motion to reopen as untimely, rejecting

his claim that he had not received the August 2005 order. We remanded the matter to the

BIA to consider the weight to be accorded Jahjaga’s claim of non-receipt of the Board’s

order. Jahjaga, 512 F.3d at 85-86. On remand, the BIA reaffirmed its denial of Jahjaga’s

motion to reopen. (See BIA Decision dated July 28, 2008.) Jahjaga did not file a petition

for review.

       On October 6, 2008, Jahjaga filed a motion to reopen seeking asylum on



                                             2
humanitarian grounds pursuant to 8 C.F.R. § 1208.13(b)(1)(iii), and sua sponte reopening

by the Board. Jahjaga claimed that he joined the DLK in 1990, becoming vice-chairman

in 1997. According to Jahjaga, he was targeted by the Serbian government and by

Serbian extremists for his political activities. He said that he was arrested by Serbian

police and beaten twice in 1990 and 1993, and in 1997, he was forced to go into hiding.

His father and mother, both of whom were Albanians, were killed by Serbs.

       In 1999, Jahjaga’s party, the DLK, split with Albanian extremists who advocated

violent expulsion of all non-Albanians from Kosovo. Shortly after the split, Jahjaga

began receiving threats of harm from the Albanian extremists. Months later, in

November 1999, he was shot in the back by an unknown assailant, which left him a

paraplegic. He continued to receive threats in the hospital and, in 2000, shots were fired

into his house while he was recuperating there. In 2001, Jahjaga was forced into hiding

after his house was fire-bombed. In April 2002, Jahjaga decided to leave Kosovo when

he learned that authorities were looking for him. He claimed that he no longer had any

close family ties in Kosovo as his siblings and close relatives have all moved to the

United States. In support of his motion to reopen, Jahjaga submitted the same

documentary evidence that the BIA had previously rejected as not “new” in 2005.1



       1
         The evidence included a certification of Jahjaga’s membership and party
positions held in the DLK from 1990 through 1999 (“DLK Certificate”), affidavits and
statements from his siblings, in-laws, and friends corroborating his asylum claim, death
certificates for his parents indicating that each of them was “killed by Serbs,” verification
from the Association of Disabled People of Kosovo confirming Jahjaga’s paraplegic

                                              3
       The Board denied Jahjaga’s request for relief on May 9, 2009. The Board

reasoned that Jahjaga’s failure to provide corroborating evidence of past persecution at

his removal hearing rendered him “unable to establish a nexus between the harm he

claims to have suffered and his political opinion” for purposes of establishing grounds for

humanitarian relief.2 (J.A. at 4.) Thus, according to the Board, because of Jahjaga’s

failure to show “past persecution,” neither the IJ nor the BIA had reason to consider

asylum for humanitarian reasons at the hearing or on appeal. (Id.) As for Jahjaga’s claim

that he was unable to return to Kosovo because he could not obtain medical treatment for

his paralysis there and had no one to care for him, the Board noted that the Department of

Homeland Security, not the Board, could grant deferred action status for medical reasons

as a matter of discretion. (Id.) The Board declined to reopen proceedings sua sponte and

denied the motion. Jahjaga filed this timely petition for review.

       Jahjaga contends that the Board wrongly denied reopening to consider his request

for humanitarian asylum and erroneously failed to consider his documentary evidence of



condition, and medical records documenting his gunshot wound to the spine.
       2
         In Sheriff v. Attorney General, 587 F.3d 584 (3d Cir. 2009), we explained that,
under 8 C.F.R. § 1208.13(b)(1)(iii), an alien who has suffered past persecution and who
does not face a reasonable possibility of future persecution may be eligible for a
discretionary grant of asylum on humanitarian grounds if (1) he can demonstrate
compelling reasons, arising out of the severity of the past persecution, for being unwilling
or unable to return to the designated country, or (2) he has established a reasonable
possibility that he may suffer other serious harm upon removal to that country, which
does not arise out of the past persecution but which is “so serious as to equal the severity
of persecution.” Id. at 593 & 596.

                                             4
past persecution under 8 C.F.R. § 1003.2(c). The Government asserts that the BIA did

not abuse its discretion in denying reopening because there was no record evidence of

past persecution warranting humanitarian relief. The Government also argues that, to the

extent that the BIA declined to reopen sua sponte pursuant to its authority under 8 C.F.R.

§ 1003.2(a), we lack jurisdiction to review Jahjaga’s claim.

       We begin and end with the threshold question of our jurisdiction to review the

BIA’s decision in Jahjaga’s case. Pursuant to § 1003.2(a), the BIA may sua sponte

reopen a case at any time. A petitioner must show an exceptional situation to make a

prima facie case for sua sponte reopening. Cruz v. Attorney General, 452 F.3d 240, 249

(3d Cir. 2006). However, the BIA has discretion to deny a motion to reopen even if a

prima facie case is made. Id. We have held that the BIA’s failure to sua sponte reopen a

decision based on its unfettered discretion is not reviewable. Calle-Vujiles v. Ashcroft,

320 F.3d 472, 474-75 (3d Cir. 2003).

       Here, the BIA noted that Jahjaga requested “reopening for ‘humanitarian asylum’.

. . and for sua sponte reopening.” After providing the legal standard for humanitarian

asylum with citations to the regulation and relevant caselaw, the BIA stated that neither

the IJ nor the Board had reason to consider humanitarian asylum based on the hearing

record. The Board then stated that it “declines to reopen proceedings under its

discretionary sua sponte authority at 8 C.F.R. § 1003.2(a). The motion to reopen will,

therefore, be denied.” Notably, the BIA did not address the question whether the motion



                                             5
to reopen was number or time-barred under 8 C.F.R. § 1003.2(c). We read the BIA’s

decision declining to reopen proceedings as an exercise of its unfettered discretion. Thus,

we lack jurisdiction to review it.3 Calle-Vujiles, 320 F.3d at 474-75.

       Accordingly, we will dismiss for lack of jurisdiction Jahjaga’s petition for review

of the Board’s denial of reopening pursuant to 8 C.F.R. § 1003.2(a).




       3
         The facts in this case are not similar to those that we discussed in Cruz v.
Attorney General, 452 F.3d 240, 249 (3d Cir. 2006), where we questioned whether the
BIA could, without explanation or reason, depart from a settled practice when declining
to exercise its authority to sua sponte reopen proceedings. Here, the BIA has not adopted,
either explicitly or through practice, a policy of applying a particular rule or standard to
its consideration of motions to reopen based on a claim of humanitarian asylum.

                                             6
