PRAVIN BALDEVBHAI PATEL and JYOTSNABEN PATEL v. ERIC H. HOLDER, JR., Attorney General of the United States

In the
United States Court of Appeals
For the Seventh Circuit
No. 13-2442
PRAVIN BALDEVBHAI PATEL and
JYOTSNABEN PATEL,
Petitioners,
v.
ERIC H. HOLDER, JR.,
Attorney General of the United
States,
Respondent.
Petition to Review an Order of the
Board of Immigration Appeals.
Nos. A073-578-087, A070-908-828.
ARGUED DECEMBER 6, 2013 — DECIDED APRIL 1, 2014
Before KANNE and ROVNER, Circuit Judges, and DURKIN,
District Judge.*
The Honorable Thomas M. Durkin, of the United States District Court for
*
the Northern District of Illinois, sitting by designation.

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2 No. 13-2442
ROVNER, Circuit Judge. Jyotsnaben and Pravin Patel petition
for review of a denial by the Board of Immigration Appeals of
their motion to reopen their removal proceedings. The Patels
moved to reopen more than nine years after the Board had
dismissed their earlier appeal of an immigration judge’s denial
of their applications for asylum and other relief from removal.
Because their motion to reopen was untimely, we deny the
petition.
Jyotsnaben Patel was admitted to the United States in
December 1992 as a nonimmigrant visitor; her husband, Pravin
Patel, entered nearly six months later but was neither admitted
nor paroled. They applied for asylum and both were charged
with removability: Mrs. Patel because she had overstayed her
visa, see 8 U.S.C. § 1227(a)(1)(B), and Mr. Patel because he had
entered the country illegally, see 8 U.S.C. § 1182(a)(6)(A)(I).
Their cases were consolidated, and the Patels testified before
an immigration judge in support of their applications for
asylum, but the judge found their allegations not credible,
denied their applications, and granted them voluntary depar-
ture by the end of September 2002. The Patels failed to comply
with the order for voluntary departure; their failure rendered
them inadmissible for ten years. See 8 U.S.C. § 1182(a)(9)(A)(ii);
Dada v. Mukasey, 554 U.S. 1, 12 (2008); Hadayat v. Gonzales, 458
F.3d 659, 664 (7th Cir. 2006). The Patels appealed to the Board
of Immigration Appeals, but they filed no brief. With no brief
on file, the Board summarily dismissed their appeal in March
2004 and ordered the Patels to leave the United States within
thirty days.
The Patels did not comply with the Board’s order to leave
the country. Still in the United States seven years later, in July

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No. 13-2442 3
2011 they filed an I-246 application to stay their removal. That
application sought from the government a discretionary stay
of removal for humanitarian reasons. See 8 C.F.R. §§ 241.6
and 212.5. Immigration and Customs Enforcement granted
their application in August 2012, permitting the Patels to
remain in the country for one more year so that they could
apply for adjustment of status or prepare to leave the United
States.
Instead of seeking to adjust status (no application is in the
record), the Patels moved the Board to reopen their removal
proceedings in May 2013. Their request came more than nine
years after the Board had ordered their removal but within a
year of the stay order. The request also reflected a complicated
strategy. The Patels sought to reopen the removal proceedings
so that they could ask the government to consent to have those
proceedings administratively closed. Once closed, the Patels
believed, they could seek a provisional waiver of their inad-
missibility on the basis of their U.S.-citizen daughter.
See 8 C.F.R. § 212.7(e). With the waiver in hand, the Patels
could then travel abroad to apply for an immigrant visa to
return legally to the United States. See id. § 212.7(e)(3)(vi). The
Department of Homeland Security opposed their motion to
reopen, asserting that it was filed too late and no exception to
the filing deadline applied. Moreover, the Department said,
even if the Board reopened the proceedings, the government
would not consent to close the proceedings administratively,
thus eliminating the Patels’ eligibility for a provisional waiver
and quest for lawful status.
In its order the next month, the Board denied the Patels’
motion to reopen. It explained that the motion was filed after

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4 No. 13-2442
the 90-day period for motions to reopen, see 8 U.S.C.
§ 1229a(c)(7); 8 C.F.R. § 1003.2(c)(2), the Patels did not assert
that they fell within any exception to the 90-day deadline, and
they did not establish an extraordinary situation that would
warrant reopening sua sponte.
In their petition in this court for review of that order, the
Patels argue that the Board abused its discretion in denying
their motion to reopen. They contend that the Board ignored
two administrative changes to immigration enforcement in the
last two years that, they believe, justify reopening their case.
First, the Patels repeat that if their cases are reopened, they can
seek provisional waivers of inadmissibility. They cite to
regulatory changes last year under which aliens granted
waivers may lawfully return to the United States after travel-
ing abroad to obtain immigrant visas. See 8 C.F.R.
§ 212.7(e)(4)(v) (effective March 2013). Second, the Patels insist
that the Board should have considered a recent internal
memorandum from Immigration and Customs Enforcement
that describes its updated prosecutorial priorities. Under the
terms of that memo, they believe that they are now eligible for
an exercise of prosecutorial discretion that favors reopening
t h e i r c a s e . S e e h t t p : / / w w w. i c e . g o v / d o c l i b /
secure-communities/pdf/prosecutorial-discretion-memo.pdf
(last visited March 21, 2014). Since the government in 2012
exercised its discretion to grant the Patels an administrative
stay from removal, the Patels conclude that, for the sake of
consistency, the Board should have extended favorable
prosecutorial discretion to permit them to reopen their pro-
ceedings.

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No. 13-2442 5
We review the Board’s denial of a motion to reopen for
abuse of discretion, and we will uphold its decision unless it
was made without a rational explanation or rested on an
impermissible basis. Reyes-Cornejo v. Holder, 734 F.3d 636, 647
(7th Cir. 2013); Marino v. Holder, 687 F.3d 365, 368 (7th Cir.
2012). Here, the Board did not abuse its discretion.
First, an alien seeking the relief of reopening generally must
move to reopen within ninety days of the final administrative
decision of removal. 8 U.S.C. § 1229a(c)(7)(C)(i); 8 C.F.R.
§ 1003.2(c)(2). The Patels do not dispute that their motion was
filed almost nine years too late. The statute provides exceptions
to the ninety-day limit, such as a change in country conditions,
see 8 U.S.C. § 1229a(c)(7)(C)(ii), but the Patels do not argue to
us (nor did they argue to the Board) that any of these excep-
tions apply. Instead, they cite to the recent administrative
changes. But regulatory or administrative changes like those
on which the Patels rely are not included among the exceptions
to the 90-day deadline. The Board thus acted properly in
denying the motion as untimely. See 8 U.S.C.
§ 1229a(c)(7)(C)(i); 8 C.F.R. § 1003.2(c)(3).
Even if the recent administrative changes were exceptions
to the 90-day deadline, the Board’s refusal to reopen based on
them would not be an abuse of discretion. The Patels seek to
reopen so they can ask the government to consent to adminis-
trative closure, which would allow the Patels to pursue a
waiver of inadmissibility and immigrant visas through
consular processing overseas. See 8 C.F.R. § 212.7(e)(3). But in
opposing the motion to reopen, the government emphasized
that it would not consent to close the proceedings administra-
tively. Without administrative closure, the Patels would

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6 No. 13-2442
remain ineligible for provisional waivers of inadmissibility, the
professed purpose of their motion to reopen. Therefore, far
from being required, reopening the Patels’ cases would have
been pointless.
The Patels offer two replies, but both are unavailing. First,
they argue that, even if the Board properly denied their
motion, the Board should have reopened the proceedings sua
sponte. But we do not review the Board’s decisions not to
reopen sua sponte. See Shah v. Holder, 736 F.3d 1125, 1126
(7th Cir. 2013); Anaya–Aguilar v. Holder, 683 F.3d 369, 372–73
(7th Cir. 2012). Second, they insist that, despite the untimeli-
ness of their motion, the Board should have reopened their
case as a favorable exercise of prosecutorial discretion, follow-
ing the advice in the memorandum from Immigration and
Customs Enforcement. This contention is flawed on several
levels. The Board is not empowered to exercise prosecutorial
discretion in agency enforcement of immigration laws. See Kim
v. Holder, 737 F.3d 1181, 1185 (7th Cir. 2013). Also, government
decisions about prosecutorial discretion in immigration
enforcement are not subject to judicial review. Id. Moreover,
the memorandum explicitly states that it does not create any
rights or benefits enforceable at law. Finally, the Patels have
never explained how a favorable exercise of discretion is the
proper reward for their decision to flout the grant of voluntary
departure in 2002, the purpose of which was to facilitate
removal “without requiring the agency and courts to devote
resources to the matter.” Alimi v. Ashcroft, 391 F.3d 888, 892
(7th Cir. 2004).
So we must deny the petition for review, but two develop-
ments after oral arguments require brief comment. First, after

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No. 13-2442 7
argument, the Patels again sought from Immigration and
Customs Enforcement a favorable exercise of prosecutorial
discretion to consent to reopening their proceedings, and the
agency again refused. Second, after the agency refused the
Patels’ request, they responded in our court with a “stipula-
tion” asking that we adopt certain “procedures and standards
set forth by the Second Circuit.” These procedures would
require that we dismiss this appeal so that the Justice Depart-
ment could seek administrative closure. This is not the case to
consider adopting the Second Circuit’s procedures because
those procedures would not help the Patels. Even under the
Second Circuit’s procedures, the government must consent to
administrative closure, see In re Immigration Petitions for Review
Pending in U.S. Court of Appeals for Second Circuit, 702 F.3d 160,
161 (2d Cir. 2012), and the government has repeatedly refused
to do so.
Accordingly, the Board did not abuse its discretion in
declining to reopen the Patels’ proceedings, and their petition
for review is DENIED.

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