                                                       NOT PRECEDENTIAL

                       UNITED STATES COURT OF APPEALS
                            FOR THE THIRD CIRCUIT
                                 ____________

                                      No. 13-3146
                                     ____________

                                       QI LU WU,
                                              Petitioner,

                                            v.

                 ATTORNEY GENERAL OF THE UNITED STATES,
                                         Respondent
                     __________________________________

                         On a Petition For Review of an Order
                          of the Board of Immigration Appeals
                              (Agency No. A078-299-188)
                         Immigration Judge: Donald V. Ferlise
                       __________________________________

                    Submitted Pursuant to Third Circuit LAR 34.1(a)
                                  December 10, 2013

             Before: HARDIMAN, NYGAARD and ROTH, Circuit Judges

                          (Opinion filed: December 12, 2013)
                                     ____________

                                       OPINION
                                     ____________


PER CURIAM

      Qi Lu Wu (“Wu”) petitions for review of the Board of Immigration Appeals’ final

order of removal. For the reasons that follow, we will deny the petition for review.
       Wu, a native and citizen of China, attempted to enter the United States on April 5,

2001. On May 8, 2001, removal proceedings were initiated against him; a Notice to

Appear filed in Immigration Court in Chicago charged that he was removable under

Immigration & Nationality Act § 212(a)(6)(C)(i), 8 U.S.C. § 1182(a)(6)(C)(i), as an alien

who by fraud or misrepresentation sought to procure a visa. Venue eventually was

changed to Philadelphia, and Wu applied for asylum, withholding of removal, and

protection under the Convention Against Torture, claiming that he was persecuted in

China because he and his wife violated China’s coercive population control policy. Wu

alleged that his wife had been forced to undergo an abortion. A merits hearing convened

on May 13, 2003 before Immigration Judge Donald Ferlise. Following the hearing,

Judge Ferlise sustained the charges against Wu and found that his testimony in support of

his asylum application had not been truthful. The application was denied, and,

additionally, Judge Ferlise found that it was frivolous. An order of removal to China was

issued. On September 8, 2004, the Board of Immigration Appeals dismissed Wu’s

appeal, concluding that there was no clear error in Judge Ferlise’s adverse credibility

determination. The Board did not specifically address the frivolous asylum application

finding. On December 8, 2004, Wu filed a pro se motion to reopen with the Board to

submit new evidence in support of his asylum application. The Board denied it on

February 22, 2005.

       For the next eight years, Wu continued to live in the United States; he neither

departed on his own nor was he removed by immigration authorities. On April 22, 2013,

Wu filed a second motion to reopen his removal proceedings. Noting that his wife had

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come to the United States in May, 2010, and that she was currently applying for asylum

based on the same events that his application had been based upon, Wu argued that Judge

Ferlise’s adverse credibility determination in his case was not supported by substantial

evidence, that the frivolous asylum application determination was based on speculation,

and that Judge Ferlise had since been the subject of “widespread reports of misconduct.”

A.R. 20. 1 Wu also offered explanations for many of the discrepancies cited by Judge

Ferlise in denying his original application. In support of the motion, Wu submitted

evidence, including his wife’s asylum application and a 2006 article concerning Judge

Ferlise.

       On June 20, 2013, the Board granted Wu’s motion in part and denied it in part.

The Board held that the motion, which was both to reopen and reconsider, was untimely

filed. In addition, as a pure motion to reopen, it was also numerically barred. The Board

further held that Wu did not allege or establish that his motion fit within any of the

exceptions to the time and number limits established by the statute and regulations. The

Board then considered its sua sponte power to reopen or reconsider cases where

exceptional circumstances are demonstrated, see Matter of J-J-, 21 I. & N. Dec. 976 (BIA

1997), and concluded that exceptional circumstances did not exist to reopen or reconsider

the IJ’s adverse credibility determination. The Board reasoned that Wu failed to explain

why he waited such a substantial amount of time before challenging the IJ’s adverse

credibility determination on the ground of judicial misconduct, and, in addition, Wu did

1
 In Cham v. Att’y Gen. of U.S., 445 F.3d 683 (3d Cir. 2006), we noted that improper
conduct had occurred at the alien’s hearing, and that Judge Ferlise often and improperly
found asylum applications to be frivolous, see id. at 690 n.5.
                                              3
not present sufficient evidence to establish that Judge Ferlise’s conduct at his hearing

deprived him of a full and fair hearing. Further, the Board concluded that, even if the

adverse credibility determination were to be reversed, Wu had not made out a prima facie

case for asylum, citing Matter of J-S-, 24 I. & N. Dec. 520 (A.G. 2008) (husband of

woman who was subjected to forced abortion is not per se eligible for asylum). The

Board then exercised its sua sponte power to reconsider the IJ’s finding that Wu’s asylum

application was frivolous “in the interest of fairness.” A.R. 4. The Board revised its

September 8, 2004 decision to state that Judge Ferlise’s frivolous application finding was

vacated, reasoning that the finding did not comply with certain of the Board’s subsequent

precedential decisions, including Matter of B-Y-, 25 I. & N. Dec. 236 (BIA 2010).

       Wu timely petitioned for review. We generally have jurisdiction to review a final

order of removal pursuant to 8 U.S.C. § 1252(a)(1), (b)(1). We review the denial of a

motion to reopen or reconsider for an abuse of discretion. Immigration & Naturalization

Serv. v. Doherty, 502 U.S. 314, 323 (1992). Under the deferential abuse of discretion

standard, we will not overturn the Board’s decision unless it is arbitrary, irrational, or

contrary to the law. See Guo v. Ashcroft, 386 F. 3d 556, 562 (3d Cir. 2004). We uphold

the Board’s factual determinations underlying the denial of the motion to reopen or

reconsider if they are “‘supported by reasonable, substantial, and probative evidence on

the record considered as a whole.’” Zheng v. Att’y Gen. of U.S., 549 F.3d 260, 266 (3d

Cir. 2008) (quoting Immigration & Naturalization Serv. v. Elias-Zacarias, 502 U.S. 478,

481 (1992)).



                                              4
       We will deny the petition for review. The Board did not abuse its discretion in

denying Wu’s motion to reopen as time- and number-barred, and his motion to reconsider

as time-barred. A party may file only one motion to reopen and such motion must be

filed no later than 90 days after the date of the removal order. 8 C.F.R. § 1003.2(c)(2); 8

U.S.C. § 1229a(c)(7)(C)(i). Under 8 C.F.R. § 1003.2(b)(2), a motion to reconsider must

be filed within 30 days after the date of the Board’s decision. See also 8 U.S.C. §

1229a(c)(6)(B). Wu does not dispute that his April, 2013 motion was time- and number-

barred to the extent that he sought reopening of his removal proceedings, and untimely to

the extent that he sought reconsideration of the Board’s September 8, 2004 decision. Nor

does he dispute that he did not establish that his motion fit within any of the recognized

exceptions to the time and number limits established by the statute and regulation, see 8

U.S.C. § 1229a(c)(7)(C)(ii); 8 C.F.R. § 1003.2(c)(3)(i)-(iv).

       Instead, Wu argues in his brief that we have jurisdiction to review the Board’s

decision declining to use its sua sponte authority to reopen and reconsider his asylum

proceedings, that the time and number restrictions for his motion to reopen and

reconsider should be excused due to judicial misconduct, that the record supports a

finding that Judge Ferlise’s conduct deprived him of a full and fair hearing, and that, if he

had received a full and fair hearing, reversal of the adverse credibility finding would

result in a prima facie showing of eligibility for asylum. See Petitioner’s Brief, at 6.

       We disagree that we have jurisdiction to review the Board’s decision declining to

use its sua sponte authority to reopen and reconsider the agency’s adverse credibility

determination. Under 8 C.F.R. § 1003.2(a), the Board may “at any time reopen . . . on its

                                              5
own motion any case in which it has rendered a decision.” The regulation grants the

Board broad discretion “to deny a motion to reopen even if the party moving has made

out a prima facie case for relief.” Id. The Board has explained that it exercises its sua

sponte authority “sparingly, treating it not as a general remedy for any hardships created

by enforcement of the time and number limits in the motions regulations, but as an

extraordinary remedy reserved for truly exceptional situations.” Matter of G-D-, 22 I. &

N. Dec. 1132, 1133-34 (BIA 1999). The Board’s decision not to exercise its sua sponte

authority to reopen proceedings is unreviewable, except where the Board relies on an

incorrect legal premise. See Calle-Vujiles v. Ashcroft, 320 F.3d 472, 475 (3d Cir. 2003).

See also Pllumi v. Att’y Gen. of the U.S., 642 F.3d 155, 160 (3d Cir. 2011) (remand

proper where Board may have mistakenly thought that it did not have authority to

consider alien’s health concerns as “other serious harm” under 8 C.F.R. §

1208.13(b)(1)(iii)(B)).

       Here, the Board did not rely on any incorrect legal premises in declining to reopen

and reconsider Judge Ferlise’s adverse credibility determination. Wu argues that the

Board implied the existence of reviewable exceptional circumstances in his case – in the

form of judicial misconduct – by vacating Judge Ferlise’s frivolous asylum application

finding. See Petitioner’s Brief, at 8-9. We do not agree. The Board did not make any

finding of judicial misconduct in Wu’s case. The Board concluded that Wu did not

present sufficient evidence to establish that Judge Ferlise’s conduct deprived him of a full

and fair hearing. In determining that Judge Ferlise’s frivolous asylum application finding

should be vacated, the Board did not make a finding of misconduct; it simply held that

                                             6
the determination did not comport with its more recent decisions that require specific

findings that material elements of the claim have been deliberately fabricated, see, e.g.,

Matter of B-Y-, 25 I. & N. Dec. 236 (in making frivolousness determination, IJ must

make explicit findings that incredible aspects of asylum application were material and

deliberately fabricated, but IJ may incorporate factual findings made in support of

adverse credibility determination in doing so).

       Because the Board neither misperceived the relevant law nor misunderstood its

sua sponte authority, we have no basis for exercising jurisdiction over the Board’s

determination that exceptional circumstances did not exist to reopen or reconsider the IJ’s

adverse credibility determination in Wu’s case. 2 To the extent that Wu has argued that

judicial misconduct warrants that the time and number restrictions for motions to reopen

or reconsider be tolled or excused, see Petitioner’s Brief, at 10-11, we agree with the

Board’s determination that Wu failed to account for the substantial amount of time that

passed before he challenged the adverse credibility determination on the basis of judicial

misconduct, cf. Mahmood v. Gonzales, 427 F.3d 248, 252-53 (3d Cir. 2005) (attorney

conduct may provide basis for equitable tolling of deadline for motion to reopen if alien

shows that he was diligent in bringing his claim), and we see no abuse of discretion in the


2
  In Chehazeh v. Att’y Gen. of U.S., 666 F.3d 118, 129 (3d Cir. 2012), we held that we
may review the Board’s exercise of its sua sponte authority to grant reopening. The
Board’s decision here to grant reconsideration in part and vacate the frivolous asylum
application finding would be reviewable under Chehazeh if a party who had standing to
appeal was seeking review of the decision, McLaughlin v. Pernsley, 876 F.2d 308, 313
(3d Cir. 1989) (in order to have standing to appeal a party must be aggrieved by the order
from which it seeks to appeal). The Government does not challenge the Board’s decision
to vacate the frivolous application finding.
                                             7
Board’s determination that Wu did not show that Judge Ferlise engaged in misconduct at

his particular hearing. Last, because we find no abuse of discretion in the Board’s

decision to deny Wu’s motion to reopen and reconsider as procedurally defective, and

because we lack jurisdiction to review the Board’s decision not to exercise its sua sponte

authority to reopen or reconsider the adverse credibility determination, we conclude that

it is unnecessary for us to address Wu’s additional argument that reversal of the adverse

credibility finding would result in a prima facie showing of his eligibility for asylum.

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




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