3. Summary of the Opinion
The court resolved Fung’s petition through three separate conclusions.
A. The termination-based argument was unexhausted
On judicial review, Fung argued that the BIA’s termination authority under 8 C.F.R. § 1003.1(m) was not subject to the ordinary 90-day reopening deadline. Although his administrative motion requested both reopening and termination, it cited only the reopening regulation and did not present the argument that § 1003.1(m) displaced that deadline.
The court held that merely requesting termination did not adequately present this distinct legal theory. Because the government invoked the failure to exhaust, the court would not consider it.
B. The motion was untimely under the ordinary reopening rules
The motion was filed more than two decades after the BIA’s final administrative order, far outside the 90-day deadline. Fung neither sought equitable tolling nor alleged changed country conditions that could excuse the delay. The BIA therefore did not abuse its discretion in denying reopening on timeliness grounds.
C. The refusal to reopen sua sponte was not reviewable
The BIA retained discretionary authority to reopen proceedings on its own initiative, but declined to exercise it. Applying circuit precedent, the court held that it lacked jurisdiction to review that discretionary refusal because the governing regulation supplies no judicially manageable standard for evaluating it.
Accordingly, the court denied the petition insofar as it challenged the ordinary reopening decision and dismissed it insofar as it challenged the refusal to reopen sua sponte.
4. Analysis
A. Precedents Cited and Their Influence
Jiang v. U.S. Att'y Gen., 568 F.3d 1252 (11th Cir. 2009)
Jiang v. U.S. Att'y Gen. supplied the standard of review: denial of a motion to reopen is reviewed for abuse of discretion, with the court asking whether the BIA acted arbitrarily or capriciously.
This framework limited the appellate inquiry. The court was not deciding anew whether reopening would be equitable or desirable. It assessed whether the BIA permissibly applied the procedural rules to Fung’s motion. Given the lengthy delay and the absence of a properly asserted basis for excusing it, the court found no abuse of discretion.
Avila-Santoyo v. U.S. Att'y Gen., 713 F.3d 1357 (2013) (en banc)
Avila-Santoyo v. U.S. Att'y Gen. established that the 90-day reopening deadline is a nonjurisdictional claim-processing rule rather than an absolute limit on adjudicatory power. Consequently, equitable tolling may be available.
Under the test quoted in the opinion, a petitioner must demonstrate both diligent pursuit of rights and an extraordinary circumstance that prevented timely action. This precedent mattered because it foreclosed treating lateness as automatically insurmountable in every case.
Nevertheless, Fung did not invoke equitable tolling or allege facts satisfying its requirements. The court therefore did not decide whether his particular circumstances could have supported tolling if properly presented. His later acquisition of derivative asylum was not treated as automatically restarting the statutory filing period.
Laguna Rivera v. U.S. Att'y Gen., 130 F.4th 915 (11th Cir. 2025)
Laguna Rivera v. U.S. Att'y Gen. provided the controlling exhaustion framework. A petitioner must present the core issue to the BIA with enough information to allow the agency to consider and correct the alleged error. Precise terminology and fully developed briefing are unnecessary, but the essential argument must be identifiable.
This precedent drove the rejection of Fung’s termination-based theory. Requesting a particular remedy was not equivalent to explaining why the regulation authorizing that remedy supposedly displaced a separate filing deadline.
The omission was therefore substantive, not merely a missing citation. Fung had not presented the claimed relationship between § 1003.1(m) and § 1003.2(c)(2). Because the government raised exhaustion, that omission prevented judicial consideration of the argument.
Lenis v. U.S. Att'y Gen., 525 F.3d 1291 (11th Cir. 2008)
Lenis v. U.S. Att'y Gen. controlled the challenge to the BIA’s refusal to reopen sua sponte. It characterizes that decision as committed to agency discretion by law because the relevant discretion is exceptionally broad and lacks standards suitable for judicial enforcement.
The court applied that principle to 8 C.F.R. § 1003.2(a). The regulation permits reopening but does not require it whenever specified circumstances exist. Even a prima facie showing of eligibility for relief does not compel reopening. Accordingly, the court could not review the BIA’s discretionary assessment that Fung’s circumstances were insufficiently exceptional.
Heckler v. Chaney, 470 U.S. 821 (1985)
Heckler v. Chaney, discussed in a footnote, supplied the administrative-law foundation for nonreviewability. Under 5 U.S.C. § 701(a)(2), judicial review is unavailable when agency action is committed to agency discretion by law.
The key consideration is whether a court has a meaningful standard against which to evaluate the agency’s choice. Without such a standard, ordinary abuse-of-discretion review cannot operate. This reasoning explains why review remained available for the BIA’s application of established reopening deadlines but not for the particular discretionary refusal to reopen on its own initiative.
B. Legal Reasoning
1. Reopening and termination are related but distinct
Reopening allows a concluded proceeding to be considered again. Termination ends the proceeding. Fung requested reopening as the procedural route to termination, but later argued that the termination regulation itself made the reopening deadline inapplicable.
The court acknowledged that § 1003.1(m) authorizes termination in qualifying circumstances involving lawful status acquired after proceedings began. It nevertheless declined to decide the relationship between that authority and the reopening deadline because the argument had not been exhausted.
The opinion therefore does not hold that § 1003.1(m) can never support termination notwithstanding an otherwise untimely reopening request. Its narrower holding is that Fung could not obtain judicial review of that theory without first presenting it to the BIA.
2. A favorable status development does not itself excuse untimeliness
The ordinary reopening deadline runs from the final administrative removal order, not from a later approval of immigration benefits. Fung’s October 2024 derivative-asylum approval therefore did not, by itself, make his April 2025 motion timely under the ordinary rule.
The court considered the established routes around that rule. Equitable tolling required a supported claim of diligence and extraordinary obstruction; the changed-country-conditions exception required qualifying evidence concerning conditions in the country of removal. Fung advanced neither basis.
His motion cited § 1003.2(c)(3)(iii), the provision addressing jointly agreed and filed motions. The decision did not treat his filing as a qualifying joint motion, and the BIA expressly preserved the possibility of a future joint filing. Citation to an exception was not a substitute for satisfying its requirements.
3. The opinion separates procedural barriers from jurisdictional limits
The court treated three obstacles differently:
- Exhaustion: The government’s invocation of Fung’s failure to present his termination theory prevented consideration of that argument.
- Timeliness: The court reviewed the ordinary reopening denial and found no abuse of discretion.
- Sua sponte discretion: The court held that it lacked jurisdiction to review the challenged discretionary refusal.
This distinction explains the mixed disposition. An unsuccessful challenge to an otherwise reviewable agency decision results in denial; the absence of authority to review the discretionary decision results in dismissal.
4. The court did not invalidate derivative asylum
The BIA expressly separated its procedural ruling from USCIS’s approval of derivative asylum. Neither the BIA’s refusal to reopen nor the appellate disposition purported to revoke that status.
The BIA also stated that equities accumulated while remaining unlawfully after a removal order generally do not justify discretionary reopening. That was part of the agency’s reasoning. Because the court found the sua sponte refusal unreviewable, it did not independently approve that assessment on its merits or establish a categorical rule against considering later-acquired equities.
C. Potential Impact
Although unpublished, the opinion offers several practical lessons for immigration litigation.
- Present the actual legal theory administratively. A request for termination should explain why the asserted termination authority overcomes any reopening obstacle; naming the desired remedy alone may be insufficient.
- Address timeliness independently of substantive eligibility. Eligibility for immigration benefits and entitlement to reopen a concluded case are separate questions.
- Support exceptions expressly. Diligence, extraordinary circumstances, changed country conditions, or the requirements for joint reopening cannot simply be assumed.
- Recognize the limits of discretionary reopening. A request for sua sponte relief is not an assured substitute for a timely motion, and the discretionary refusal addressed here was beyond judicial review.
- Distinguish unavailable relief from unresolved avenues. The decision left the derivative-asylum grant intact and did not foreclose a qualifying joint motion.
The opinion’s broader significance lies in reinforcing procedural discipline, not in conclusively interpreting the scope of the termination regulation. That substantive relationship remains unresolved by this decision.