Baoyu Zhang v. U.S. Attorney General

[DO NOT PUBLISH]
In the
United States Court of Appeals
For the Eleventh Circuit
____________________
No. 21-14355
Non-Argument Calendar
____________________
BAOYU ZHANG,
Petitioner,
versus
U.S. ATTORNEY GENERAL,
Respondent.
____________________
Petition for Review of a Decision of the
Board of Immigration Appeals
Agency No. A201-561-567
____________________
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2 Opinion of the Court 21-14355
Before NEWSOM , B RANCH, and G RANT, Circuit Judges.
PER CURIAM:
Baoyu Zhang, proceeding pro se, seeks review of a decision
of the Board of Immigration Appeals (“BIA”) affirming and
adopting the Immigration Judge’s (“IJ”) decision denying his
motion to reconsider and reopen his removal proceeding. In his
petition for review, Zhang argues that the IJ erred in finding that
he was not entitled to equitable tolling of the deadline to file a
motion to reopen and by declining to reopen his case sua sponte.
The government in turn moves for summary disposition, arguing
that we lack subject-matter jurisdiction over Zhang’s petition
because he failed to exhaust his administrative remedies. After
review, we grant the government’s motion in part and deny it in
part.
Summary disposition is appropriate where “the position of
one of the parties is clearly right as a matter of law so that there can
be no substantial question as to the outcome of the case, or where,
as is more frequently the case, the appeal is frivolous.” Groendyke
Transp., Inc. v. Davis, 406 F.2d 1158, 1162 (5th Cir. 1969).1
As an initial matter, the government is correct that we lack
jurisdiction to review the IJ’s refusal to exercise his sua sponte
1 See Bonner v. City of Prichard, 661 F.2d 1206, 1207 (11th Cir. 1981) (en banc)
(holding that all decisions from the Fifth Circuit Court of Appeals issued prior
to October 1, 1981, are binding precedent in the Eleventh Circuit).
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21-14355 Opinion of the Court 3
authority to reopen Zhang’s removal proceedings. See Lenis v. U.S.
Att’y Gen., 525 F.3d 1291, 1293 (11th Cir. 2008) (explaining that
neither the regulation granting the agency discretion to reopen
proceedings sua sponte, 8 C.F.R. § 1003.2(a), nor the statute from
which that regulation derives, 8 U.S.C. § 1103(g)(2), provide any
“meaningful standard against which to judge the agency’s exercise
of discretion” (quotation omitted)); see also Bing Quan Lin v. U.S.
Att’y Gen., 881 F.3d 860, 871 (11th Cir. 2018) (“Generally we cannot
review decisions of the BIA that are committed to its discretion.
Thus, we have held on several occasions that we lack jurisdiction
to review a decision of the BIA not to exercise its power to reopen
a case sua sponte.”). Accordingly, summary disposition is
appropriate as to this issue. Groendyke, 406 F.2d at 1162.
On the other hand, summary disposition is not appropriate
as to Zhang’s challenge to the IJ’s equitable tolling determination.
Section 1252(d)(1) of the Immigration Nationality Act provides, in
relevant part, that “[a] court may review a final order of removal
only if—(1) the alien has exhausted all administrative remedies
available to the alien as of right.” 8 U.S.C. § 1252(d)(1). At the time
the government filed the motion for summary affirmance, it was
well-established in this Circuit that § 1252(d)(1)’s exhaustion
requirement was jurisdictional. See Amaya-Artunduaga v. U.S. Att’y
Gen., 463 F.3d 1247, 1250 (11th Cir. 2006). In other words, “[w]e
lacked jurisdiction to consider a claim raised in a petition for review
unless the petition ha[d] exhausted his administrative remedies” as
to that claim. Id. Recently, however, the Supreme Could held that
the exhaustion requirement in § 1252(d)(1) is not jurisdictional.
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4 Opinion of the Court 21-14355
Santos-Zacaria v. Garland, No. 21-1436, 598 U.S. __, 2023 WL
3356525, at *5–8 (U.S. May 11, 2023). Accordingly, the
government’s position is not clearly right as a matter of law and
summary disposition is not appropriate as to this claim.
Consequently, we GRANT IN PART the government’s
motion for summary disposition, and we dismiss the portion of
Zhang’s petition that challenges the IJ’s failure to reopen Zhang’s
removal proceedings sua sponte. We DENY the motion as it relates
to Zhang’s challenge to the IJ’s equitable tolling decision.2
MOTION FOR SUMMARY DISPOSITION GRANTED
IN PART AND DENIED IN PART. PETITION DISMISSED IN
PART.
2 The government’s motion to stay the briefing schedule is DENIED AS
MOOT.
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