               United States Court of Appeals
                          For the Eighth Circuit
                      ___________________________

                              No. 18-2595
                      ___________________________

                              Chong Toua Vue

                                            Petitioner

                                       v.

            William P. Barr, Attorney General of the United States

                                         Respondent

                          ------------------------------

Immigrant Law Center of Minnesota; Immigrant Legal Resource Center; National
             Immigration Project of the National Lawyers Guild

                             Amici on Behalf of Petitioner
                      ___________________________

                              No. 18-3671
                      ___________________________

                              Chong Toua Vue

                                            Petitioner

                                       v.

            William P. Barr, Attorney General of the United States

                                         Respondent

                          ------------------------------
Immigrant Law Center of Minnesota; Immigrant Legal Resource Center; National
             Immigration Project of the National Lawyers Guild

                                 Amici on Behalf of Petitioner
                                 ____________

                     Petitions for Review of an Order of the
                         Board of Immigration Appeals
                                  ____________

                          Submitted: October 18, 2019
                              Filed: March 27, 2020
                                ____________

Before LOKEN, SHEPHERD, and STRAS, Circuit Judges.
                          ____________

STRAS, Circuit Judge.

      Through two petitions for review, Chong Toua Vue asks us to decide whether
the Board of Immigration Appeals misinterpreted a recent Supreme Court decision
when it refused to reopen his case. The decision is Esquivel–Quintana v. Sessions,
137 S. Ct. 1562 (2017), and Vue believes it means that he is no longer removable.
We deny both petitions for review because, despite his procedural arguments to the
contrary, the Board did not have to give him another try.

                                        I.

      Vue is a citizen of Laos who came to the United States as a refugee in 1990
and later became a lawful permanent resident. In 2002, he pleaded guilty to hiring
a person “under the age of 18 years but at least 16 years to engage in sexual
penetration or sexual contact.” Minn. Stat. § 609.324, subd. 1(c)(2). After he
pleaded guilty, the Department of Homeland Security charged him as removable for
committing an “aggravated felony”: “sexual abuse of a minor.” See 8 U.S.C.

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§ 1101(a)(43)(A). In 2005, an immigration judge agreed that he was removable but
decided that he could not be removed to Laos because he would likely be persecuted
there. See id. § 1231(b)(3); see also Gumaneh v. Mukasey, 535 F.3d 785, 788 (8th
Cir. 2008) (discussing the remedy of “withholding of removal”). He remains in the
United States today.

      Twelve years later, in 2017, Vue asked the Board to reopen those proceedings
under two separate provisions. The first is a regulation, 8 C.F.R. § 1003.2, which
gives the Board the discretion to reopen proceedings “on its own motion.” The
second is a statute, 8 U.S.C. § 1229a(c)(7), which gives aliens the right to file one
motion to reopen within 90 days of a final order of removal. See id.
§ 1229a(c)(7)(C)(i).

       Under each provision, Vue’s theory has been that Esquivel–Quintana
narrowed what crimes qualify as “sexual abuse of a minor.” For statutory-rape
offenses depending solely on a victim’s age, Esquivel–Quintana limits “sexual abuse
of a minor” to only those crimes requiring the victim to be “younger than 16.” 137
S. Ct. at 1568. Vue believes this age cutoff is universal, meaning that his own
solicitation-of-prostitution offense, which did not involve a victim under age 16,
would not qualify as “sexual abuse of a minor.” This “fundamental change in the
law,” in his view, justifies reopening his removal proceedings, In re G-D-, 22 I. &
N. Dec. 1132, 1132–35 (BIA 1999) (discussing when a “fundamental change in the
law” allows a case to be reopened), and equitably tolling the statutory filing deadline,
which would have allowed the 90-day clock to restart once the Supreme Court
decided Esquivel–Quintana.

       At each stop, before an immigration judge and then before the Board, Vue’s
argument has been rejected. Neither thought that Esquivel–Quintana applied to his
solicitation-of-prostitution offense. For Vue, this meant that he did not receive either
a sua-sponte reopening of the earlier proceedings or equitable tolling of the statutory



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filing deadline. On both points, he petitions for review on the theory that the Board
misread Esquivel–Quintana. 1

                                         II.

       When it comes to how the Board exercises its power to reopen on “its own
motion,” our review is exceedingly narrow. By law, the decision is “committed to
agency discretion,” and without any “meaningful standard” to guide our review, all
we can do is consider “colorable” constitutional claims. Tamenut v. Mukasey, 521
F.3d 1000, 1003–05 (8th Cir. 2008) (en banc) (per curiam) (citation omitted). See
generally Webster v. Doe, 486 U.S. 592, 603 (1988) (explaining that the exception
is based on the rule “that where Congress intends to preclude judicial review of
constitutional claims its intent to do so must be clear”). Vue does not raise a
colorable constitutional claim, so under currently existing law, we cannot review this
decision. See Tamenut, 521 F.3d at 1005 (reaching a similar conclusion).

       Relying on cases from other circuits, however, Vue urges us to recognize a
second exception permitting appellate review when the Board relies “on an incorrect
legal premise.” Barajas-Salinas v. Holder, 760 F.3d 905, 907 (8th Cir. 2014)
(citation omitted).2 The “incorrect legal premise,” according to him, is that the
Board misinterpreted Esquivel–Quintana when it concluded that it had no


      1
        Vue’s second petition challenges the denial of his motion for reconsideration.
This later motion, however, just restated his arguments about why the Board should
have granted his motion to reopen. In the absence of anything new, the Board did
not abuse its discretion in denying it. See Averianova v. Holder, 592 F.3d 931, 935
(8th Cir. 2010) (discussing the standard of review).
      2
       Several circuits have recognized an exception like this one. See Mahmood v.
Holder, 570 F.3d 466, 469 (2d Cir. 2009); Pllumi v. Att’y Gen., 642 F.3d 155, 160
(3d Cir. 2011); Bonilla v. Lynch, 840 F.3d 575, 588–89 (9th Cir. 2016); see also
Salgado-Toribio v. Holder, 713 F.3d 1267, 1271 (10th Cir. 2013) (suggesting that
appellate courts can review “questions of law” raised by the Board’s refusal to
reopen sua sponte).
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application here. We have not yet completely shut the door on this exception, but
we do so now. See id. at 908 n.* (leaving this question open but expressing doubt
about the exception); see also Heckler v. Chaney, 470 U.S. 821, 833 n.4 (1985)
(leaving similar questions open).

       Recognizing a far-reaching exception like this one would be a retreat from
Tamenut, Barajas–Salinas, and the general principle that there is no “theory of
partial reviewability” for actions committed to agency discretion. Schilling v.
Rogers, 363 U.S. 666, 674–75 (1960); see Barajas–Salinas, 760 F.3d at 908 n.*
(noting that the Supreme Court has rejected a partial-reviewability theory). As the
Supreme Court has made clear, when the law commits certain actions to agency
discretion, we cannot pick and choose what to review depending on the particulars
of each case. See Interstate Commerce Comm’n v. Bhd. of Locomotive Eng’rs, 482
U.S. 270, 282–83 (1987) (rejecting the proposition that “if [an] agency gives a
‘reviewable’ reason for [an] otherwise unreviewable action, the action becomes
reviewable”); see also Crowley Caribbean Transp., Inc. v. Pena, 37 F.3d 671, 676
(D.C. Cir. 1994) (explaining that Brotherhood of Locomotive Engineers does not
allow courts to “carv[e] reviewable legal rulings out from the middle of non-
reviewable actions”). This is particularly true for agency inaction, which is generally
unreviewable. See Minn. Milk Producers Ass’n v. Glickman, 153 F.3d 632, 642 (8th
Cir. 1998); see also Bhd. of Locomotive Eng’rs, 482 U.S. at 283 (explaining that a
prosecutor’s mistaken belief that “the law will not sustain a conviction” is not a
reason to review the “refusal to prosecute”). So committing the action to the Board’s
discretion creates an entire “categor[y]” of decisions that lies beyond our jurisdiction
to review.3 Barajas–Salinas, 760 F.3d at 908 n.* (reviewing relevant Supreme Court
cases).




      3
       It is true, as Vue argues, that courts routinely review legal conclusions. Even
so, familiarity is not the same as authority. Even if the Board got the law wrong, as
he claims, it would not give us the authority to review a decision that is otherwise
unreviewable. See Bhd. of Locomotive Eng’rs, 482 U.S. at 283.
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                                          III.

       Our review of the denial of Vue’s statutory motion to reopen is broader. It
extends to both “constitutional claims [and other] questions of law,” 8 U.S.C.
§ 1252(a)(2)(C)–(D); see also Brikova v. Holder, 699 F.3d 1005, 1008 (8th Cir.
2012) (discussing the criminal-alien bar), including the timeliness of the filing itself,
see Mata v. Lynch, 135 S. Ct. 2150, 2154–55 (2015), and the availability of equitable
tolling, Guerrero-Lasprilla v. Barr, 589 U.S. ___, No. 18–776, slip op. at 3–5 (Mar.
23, 2020) (holding that 8 U.S.C. § 1252(a)(2)(D) lets us review equitable-tolling
arguments that involve the “application of a legal standard to undisputed or
established facts”).

       Vue’s window for filing a motion to reopen lasted only 90 days from the date
of his final order of removal in 2005. See 8 U.S.C. § 1229a(c)(7)(C)(i). By waiting
until 2017 to file the motion, he missed the window by more than a decade.

       Recognizing that the motion came 12 years too late, Vue sought rescue in the
form of equitable tolling, relying once again on Esquivel–Quintana. See generally
Hernandez-Moran v. Gonzales, 408 F.3d 496, 499–500 (8th Cir. 2005) (explaining
equitable tolling). Although he raised this argument before the Board, he has
forfeited it now by failing to raise it in his opening brief. He admits his mistake in
his reply brief, but he nevertheless asks for a remand to give the Board the first crack
at equitable tolling. This request would only make sense, however, if the Board
failed to address equitable tolling in the first place. Cf. Ortega–Marroquin v.
Holder, 640 F.3d 814, 820 (8th Cir. 2011) (remanding because the Board never
addressed equitable tolling after it granted reopening “on its own motion”).

      The Board’s decision is not a model of clarity on this point. On the one hand,
the bulk of the Board’s analysis explains why Esquivel–Quintana is of no help to
Vue, which refutes his sole rationale for equitable tolling. On the other hand, the
concluding paragraph of the Board’s decision says that


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      sua sponte reopening is not warranted, as [Vue] has not demonstrated a
      fundamental change in law which would affect the outcome of his case.
      As [he] is not asserting any other grounds for termination or eligibility
      for any other form of relief, we need not address [his] argument that
      the motions deadline should be equitably tolled.

(Emphasis added and citations omitted).

       In isolation, the last sentence arguably suggests that the Board never decided
whether equitable tolling was available. But in the context of its earlier statement
that Vue “is not asserting any other grounds for . . . relief,” the better reading is that
the Board considered tolling but rejected it based on its earlier analysis of Esquivel–
Quintana. See Certified Administrative R. at 24 (“Thus, we agree with the
Immigration Judge that Esquivel–Quintana . . . does not change the result in [Vue’s]
case”); id. at 4 (“As noted above, and in our prior decision, [his] offense is not a
statutory rape type offense and does not criminalize conduct based solely on the age
of the participants.” (emphasis added)); cf. Lee v. Holder, 765 F.3d 851, 855 (8th
Cir. 2014) (explaining that the Board “may deny a motion to reopen on the basis of
new evidence” if “the movant would not be entitled to the discretionary grant of
relief sought” (citation omitted)). Without equitable tolling, his motion came 12
years too late.

                                           IV.

      Both petitions for review are accordingly denied.
                       ______________________________




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