Hong Fang v. ATTORNEY GENERAL OF THE UNITED STATES On

NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
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No. 08-3729
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HONG FANG,
Petitioner
v.
ATTORNEY GENERAL OF THE UNITED STATES
____________________________________
On Petition for Review of an Order of the
Board of Immigration Appeals
(Agency No. A78-066-348)
Immigration Judge: Honorable Craig De Bernardis
____________________________________
Submitted Pursuant to Third Circuit LAR 34.1(a)
September 16, 2010
Before: RENDELL, HARDIMAN AND ALDISERT, Circuit Judges
(Opinion filed October 7, 2010
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OPINION
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PER CURIAM
In October 2002, the Board of Immigration Appeals (ABIA@) affirmed the decision
of an Immigration Judge (AIJ@) to deny Hong Fang's application for asylum, withholding
of removal, and relief under the Convention Against Torture. In February 2006, Fang
submitted a motion to the BIA to reopen the removal proceedings, which the BIA denied

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as untimely. We denied Fang=s subsequent petition for review. See Fang v. Attorney
Gen. of the United States, 241 F. App=x 903 (3d Cir. 2007).
In January 2008, Fang returned to the BIA with another motion to reopen. She
asked that removal proceedings be terminated, closed, or continued so that United States
Citizenship and Immigration Services could adjudicate her application to adjust her status
to a lawful permanent resident based on her marriage to a United States citizen. The BIA
denied Fang=s motion. The BIA concluded that Fang=s motion was time- and
number-barred and also declined to reopen the matter sua sponte, holding that Fang had
not shown an exceptional situation to merit reopening as a matter of discretion.
Fang presents a petition for review.1 In her short pro se brief, she argues generally
that the BIA abused its discretion in denying her motion to reopen. She explains that the
BIA cited the number and time limitations and states that the BIA erroneously concluded
that she failed to demonstrate an exceptional situation that would warrant sua sponte
reopening. Fang argues that she has shown that her situation is exceptional and warrants
sua sponte reopening. The Government responds that we lack jurisdiction to review the
BIA=s decision to decline to exercise its sua sponte authority to reopen. In the alternative,
the Government asks us to dismiss as moot Fang=s claim that the BIA abused its
discretion in denying Fang=s second motion to reopen.
1 On Fang=s motion, we held her case in abeyance pending a decision on her application
for adjustment of status. The parties briefed the case after Fang notified us that her
application had been denied.

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We agree with the Government that the BIA=s decision to decline to reopen Fang=s
proceedings sua sponte is a discretionary decision beyond our jurisdiction. See Calle-
Vujiles v. Ashcroft, 320 F.3d 472, 475 (3d Cir. 2003) (ABecause the BIA retains
unfettered discretion to decline to sua sponte reopen or reconsider a deportation
proceeding, this court is without jurisdiction to review a decision declining to exercise
such discretion to reopen or reconsider the case.@)
To the extent that Fang presents an issue beyond a claim relating to the BIA=s
discretionary decision, we also must dismiss the petition as moot because there is no
longer a live controversy. AThe existence of a case and controversy is a prerequisite to all
federal actions.@ Phila. Fed=n of Teachers v. Ridge, 150 F.3d 319, 322 (3d Cir. 1998)
(citation omitted). A live controversy is Aa real and substantial controversy admitting of
specific relief through a decree of conclusive character.@ Int=l Bhd. of Boilermakers v.
Kelly, 815 F.2d 912, 915 (3d Cir. 1987). The central question in the mootness analysis is
whether meaningful or effective relief remains available. See id. at 916. In this case, we
cannot say that it does. Fang sought reopening to terminate, close, or continue the
removal proceedings pending the adjudication of her application to adjust her status. As
Fang previously notified us, her adjustment application was denied in October 2009.
Even if we were to remand this matter to the BIA, the remand would give her no relief
because her reason for reopening, namely for Atermination, administrative closure or
simply a continuance, for a period of time long enough for the USCIS to adjudicate the
adjustment application@ R. 15-16, no longer exists.

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For these reasons, we will dismiss Fang=s petition for review.

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