43 F.4th 244
2d Cir.2022Background
- Li Chen, a Chinese national, received a final removal order in March 2014 after an IJ found him removable and, on remand, found his asylum claim unproven; Chen did not administratively appeal that removal order.
- Chen became a derivative asylee through his wife (her asylum grant finalized May 3, 2016), and thereafter sought to reopen his removal proceedings to terminate the removal order.
- Chen filed motions to reopen in June 2016 and April 2018; the IJ denied both as untimely under 8 U.S.C. § 1229a(c)(7) and declined to reopen sua sponte, citing discretionary concerns (including prior false testimony undermining credibility and lack of hardship to the wife).
- The BIA affirmed the IJ’s decision without opinion on November 29, 2019; Chen petitioned the Second Circuit for review.
- The Second Circuit held Chen’s motion to reopen was time‑barred because derivative asylee status is a self‑induced personal change, not a ‘‘changed country condition’’ exception to the 90‑day rule, and the court lacked jurisdiction to review the agency’s discretionary refusal to reopen sua sponte.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Timeliness of motion to reopen under 8 U.S.C. § 1229a(c)(7) | Chen: derivative asylee status is new evidence and avoids the 90‑day bar via the "changed country conditions" exception | Gov: derivative asylee status is a self‑induced, personal change in the U.S., not a changed condition in China; motion is untimely | Court: Motion untimely. Derivative asylee status does not satisfy "changed country conditions" exception; denial affirmed |
| Reviewability of denial to reopen sua sponte | Chen: IJ/BIA should have used sua sponte authority to reopen given his changed status | Gov: Sua sponte reopening is committed to agency discretion and therefore nonreviewable | Court: Lacks jurisdiction to review discretionary refusal to reopen sua sponte; claim dismissed in part |
Key Cases Cited
- Wang v. BIA, 437 F.3d 270 (2d Cir. 2006) (personal, self‑induced changes are not "changed country conditions")
- Mata v. Lynch, 576 U.S. 143 (2015) (judicial review of motions to reopen may be consolidated with review of removal orders)
- Ali v. Gonzales, 448 F.3d 515 (2d Cir. 2006) (denial of sua sponte reopening is discretionary and unreviewable)
- Mahmood v. Holder, 570 F.3d 466 (2d Cir. 2009) (narrow remand exception where agency misperceived legal background in sua sponte context)
- Kucana v. Holder, 558 U.S. 233 (2010) (history and reviewability of motions to reopen)
- Heckler v. Chaney, 470 U.S. 821 (1985) (agency actions committed to agency discretion are generally not judicially reviewable)