Chong Toua Vue v. William P. Barr, 953 F.3d 1054

Chong Toua Vue, a Laotian refugee and lawful permanent resident, pleaded guilty in 2002 to hiring a person aged 16–17 for sexual penetration/sexual contact under Minn. Stat. § 609.324(1)(c)(2).
DHS charged Vue as removable as an "aggravated felony" for "sexual abuse of a minor" under 8 U.S.C. § 1101(a)(43)(A); an IJ found him removable but granted withholding of removal in 2005.
In 2017 Vue sought reopening under (1) the Board's sua sponte authority (8 C.F.R. § 1003.2) and (2) the statutory one‑motion rule (8 U.S.C. § 1229a(c)(7)), arguing Esquivel–Quintana changed the law.
Vue relied on Esquivel–Quintana (137 S. Ct. 1562), which narrowed the scope of some "sexual abuse of a minor" offenses based on victim age, arguing his solicitation offense no longer qualified.
The Board denied both sua sponte reopening and the statutory motion (and later denied reconsideration); Vue petitioned for review claiming the Board misread Esquivel–Quintana.
The Eighth Circuit denied review of the Board's refusal to reopen sua sponte as committed agency action and rejected Vue's statutory motion because he missed the 90‑day window and failed to obtain equitable tolling.

Issue	Plaintiff's Argument	Defendant's Argument	Held
Reviewability of Board's sua sponte reopening refusal	Board misinterpreted Esquivel–Quintana; that legal error should be reviewable	Sua sponte reopenings are committed to agency discretion and unreviewable absent a colorable constitutional claim	Denied reviewability; no colorable constitutional claim; court declines to adopt broad "incorrect legal premise" exception
Whether Esquivel–Quintana applies to Vue's solicitation offense	Esquivel–Quintana narrows "sexual abuse of a minor" to offenses requiring victim <16, so Vue's offense (16–17) is not an aggravated felony	Vue's offense is not a statutory‑rape type that depends solely on victim age; Esquivel–Quintana does not change the result	Board and court concluded Esquivel–Quintana does not apply to Vue's offense
Timeliness of statutory motion to reopen (90‑day rule)	Esquivel–Quintana was a fundamental change in law justifying reopening and equitable tolling of the 90‑day deadline	Motion was filed 12 years late; no basis for tolling because Esquivel–Quintana doesn't help Vue	Motion untimely; equitable tolling not available on these facts
Motion for reconsideration	Restated reopening arguments; urged Board erred	No new arguments or evidence warranting reconsideration	Denied as an abuse‑of‑discretion remedy was not shown

Esquivel–Quintana v. Sessions, 137 S. Ct. 1562 (2017) (Supreme Court decision narrowing certain "sexual abuse of a minor" offenses by victim‑age analysis)
Tamenut v. Mukasey, 521 F.3d 1000 (8th Cir. 2008) (sua sponte reopening committed to agency discretion; review limited absent colorable constitutional claim)
Webster v. Doe, 486 U.S. 592 (1988) (judicial review limited where statute commits decision to agency discretion)
Interstate Commerce Comm’n v. Brotherhood of Locomotive Engineers, 482 U.S. 270 (1987) (rejects partial‑reviewability theory for agency actions)
Heckler v. Chaney, 470 U.S. 821 (1985) (agency refusals to act generally unreviewable)
Mata v. Lynch, 135 S. Ct. 2150 (2015) (scope of judicial review over timeliness of motions to reopen)
Barajas‑Salinas v. Holder, 760 F.3d 905 (8th Cir. 2014) (discusses potential exception for review when agency relies on incorrect legal premise)