Sang Goo Park v. Attorney General of the United States
846 F.3d 645
| 3rd Cir. | 2017Background
- Park, a South Korean national, was ordered removed in 2009 after an IJ sustained a fraud charge based on false statements in his visa application; the BIA and this Court previously denied relief.
- At the time of the original proceedings Park was ineligible for an 8 U.S.C. § 1182(i) waiver because he lacked a qualifying relative.
- Years later Park’s parents became lawful permanent residents, and in 2016 Park moved the BIA to reopen sua sponte so he could apply for a § 1182(i) waiver based on the hardship their removal would cause.
- The BIA denied reopening, finding no "exceptional situation" warranting sua sponte relief; Park petitioned this Court for review arguing the BIA had a settled practice of reopening in similar circumstances.
- The panel framed the central legal question as whether the "settled course" exception to nonreviewability of BIA sua sponte denials applied, and whether Park’s citations (largely unpublished BIA orders) sufficiently showed the BIA had meaningfully constrained its discretion.
Issues
| Issue | Park's Argument | Government's Argument | Held |
|---|---|---|---|
| Whether this Court has jurisdiction to review a BIA denial of sua sponte reopening under the "settled course" exception | BIA has consistently reopened for aliens who become eligible for relief after final orders; that pattern limits BIA discretion and permits review | BIA’s sua sponte discretion remains essentially unlimited; Park’s cited unpublished orders do not show a binding, limiting policy | No jurisdiction: Park failed to show the BIA meaningfully limited its discretion via a rule or settled course |
| Whether unpublished BIA decisions may be used to show a settled course | Park relied on multiple unpublished BIA orders to infer consistent practice | Govt argued only published, precedential BIA decisions should count | Unpublished decisions may be considered, but Park’s collection did not demonstrate the necessary consistency or contours to infer a limiting policy |
| Whether Chehazeh and Cruz establish jurisdiction whenever BIA denies reopening for lack of "exceptional circumstances" | Park read Chehazeh and Cruz as granting review whenever BIA invokes absence of exceptional circumstances | Govt said those cases do not broadly invert nonreviewability; they are narrower | Court rejected Park’s expansive reading: Chehazeh/Cruz do not permit review simply because BIA found no exceptional circumstances |
| Whether remand for merits consideration of a § 1182(i) waiver is warranted if jurisdiction exists | Park asked remand to allow consideration of waiver eligibility | Govt maintained jurisdictional threshold not met; merits not reached | Court did not address merits because it dismissed for lack of jurisdiction |
Key Cases Cited
- Calle-Vujiles v. Ashcroft, 320 F.3d 472 (3d Cir. 2003) (BIA denials of sua sponte reopening are generally unreviewable absent a limiting policy)
- Heckler v. Chaney, 470 U.S. 821 (U.S. 1985) (agency decisions to refuse enforcement are presumptively unreviewable)
- Cruz v. Att’y Gen., 452 F.3d 240 (3d Cir. 2006) (explained limited review when BIA’s rationale is unclear and suggested review where petitioner shows prima facie case like no longer removable)
- Chehazeh v. Att’y Gen., 666 F.3d 118 (3d Cir. 2012) (recognized that BIA’s grant decisions mark boundaries of what it considers "exceptional," and clarified review is limited)
- Pllumi v. Att’y Gen., 642 F.3d 155 (3d Cir. 2011) (first exception: court may review when BIA relied on an incorrect legal premise)
- INS v. Yang, 519 U.S. 26 (U.S. 1996) (agency practice can narrow unfettered discretion so departures may be reviewable)
- Kucana v. Holder, 558 U.S. 233 (U.S. 2010) (discussed presumption of judicial review of agency action)