Smit Patel v. William Barr, U. S. Atty Gen

IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT

No. 18-60818
Summary Calendar

SMIT PATEL,

Petitioner

v.

WILLIAM P. BARR, U. S. ATTORNEY GENERAL,

Respondent

Petition for Review of an Order of the
Board of Immigration Appeals
BIA No. A201 296 740

Before BARKSDALE, HAYNES, and ENGELHARDT, Circuit Judges.
PER CURIAM:
*

Smit Patel, a native and citizen of India, petitions for review of the Board
of Immigration Appeals’ (BIA) dismissing his appeal of an Immigration Judge’s
(IJ) denying his motion to reopen immigration proceedings. He claims: the IJ
and the BIA acted arbitrarily and capriciously by refusing to reopen his
immigration proceedings sua sponte; and these refusals are reviewable because
they were based on determinations that the IJ and BIA lacked jurisdiction over

*
Pursuant to 5th Cir. R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5th Cir.
R. 47.5.4.
United States Court of Appeals
Fifth Circuit
FILED
January 8, 2020

Lyle W. Cayce
Clerk
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his pending U-visa petition (nonimmigrant visa for victims of certain crimes,
committed in the United States, who have suffered mental or physical abuse
and are helpful to investigation or prosecution of criminal activity, see 8 U.S.C.
§ 1101(a)(15)(U)).
Where, as in this instance, the BIA’s decision relies on reasoning
provided in the IJ’s decision, both are reviewed. Zhu v. Gonzales, 493 F.3d 588,
593 (5th Cir. 2007) (citation omitted). Questions of law are reviewed de novo;
factual findings, for substantial evidence. Id. at 594 (citation omitted).
In 2011, Patel was ordered removed in absentia. His 2018 motion to
reopen his case requested the IJ do so sua sponte and administratively close
removal proceedings against him, pending the United States Citizenship and
Immigration Services’ (USCIS) decision on his U-visa petition.
An IJ may, at any time, sua sponte reopen removal proceedings in which
the IJ has rendered a decision. See 8 C.F.R. § 1003.23(b)(1). Whether to do so
is within the IJ’s “complete discretion”. Gonzalez-Cantu v. Sessions, 866 F.3d
302, 306 (5th Cir. 2017) (citation omitted) (noting provision gives BIA same
complete discretion), cert. denied, 138 S. Ct. 677 (2018). Because there is no
legal standard governing the IJ’s exercise of this discretion, our court lacks
jurisdiction to review challenges to the refusal to reopen proceedings sua
sponte. Id. (citation omitted).
Our court has jurisdiction to review the decision that a “legal barrier”
prevents the exercise of this discretion, Rodriguez-Saragosa v. Sessions, 904
F.3d 349, 355 (5th Cir. 2018); but, contrary to Patel’s claims, no such barrier
existed in this instance. The IJ and BIA noted USCIS has sole jurisdiction
over U-visa applications; they did not conclude, however, that this barred their
exercising discretion to reopen Patel’s immigration proceedings sua sponte.
Both instead considered whether reopening sua sponte was warranted, and
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concluded it was not. In short, our court lacks jurisdiction to review this
decision. See Gonzalez-Cantu, 866 F.3d at 306 (citation omitted).
DISMISSED.
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