Introduction

This immigration case addresses the narrow—and in the Sixth Circuit, largely closed—path to judicial review when the Board of Immigration Appeals (BIA) refuses to reopen removal proceedings sua sponte. Petitioner Mahesh Amrutbhai Patel, a native of India who first entered the United States without inspection in 1994, sought to reopen his case long after final removal orders, arguing that his family ties in the United States, including a U.S. citizen son serving in the U.S. Army, presented “exceptional circumstances” warranting the BIA’s discretionary intervention. The BIA denied his untimely motion, finding no exceptional situation. Patel petitioned for review, asserting the BIA abused its discretion.

The key legal issue before the Sixth Circuit was jurisdictional: whether the court may review a BIA decision declining to reopen sua sponte. The court answered no—reaffirming that it lacks jurisdiction to review the BIA’s discretionary refusal to exercise sua sponte reopening where the petitioner asserts only discretionary error and no legal error. While noting that many sister circuits recognize a narrow avenue for review when the BIA’s denial is premised on legal error, the Sixth Circuit again declined to decide that question because Patel alleged no such error here.

Summary of the Opinion

Judge Karen Nelson Moore, writing for the panel, dismissed Patel’s petition for lack of jurisdiction. The court explained:

• Ordinary motions to reopen are subject to a 90-day statutory deadline and are reviewed for abuse of discretion, but Patel’s motion was untimely and he did not claim any statutory exception applied (8 U.S.C. § 1229a(c)(7); Dada v. Mukasey, 554 U.S. 1, 12 (2008)).
• The BIA has regulatory authority to reopen proceedings sua sponte in “exceptional situations” (8 C.F.R. § 1003.2(a); In re J-J-, 21 I. & N. Dec. 976, 984 (BIA 1997)), but its decision to decline that discretionary step is “committed to the unfettered discretion of the BIA” and not subject to judicial review in the Sixth Circuit (Lopez v. Garland, 990 F.3d 1000, 1003 (6th Cir. 2021); Rais v. Holder, 768 F.3d 453, 460 (6th Cir. 2014); Barry v. Mukasey, 524 F.3d 721, 723 (6th Cir. 2008)).
• Although multiple circuits allow limited review where the BIA’s refusal rests on a legal error, the Sixth Circuit has not decided whether to adopt that exception and did not reach the issue because Patel alleged no legal error—only that the BIA should have exercised its discretion in his favor.
• The BIA’s reliance on its precedents that post-order “equities” ordinarily do not amount to exceptional circumstances (In re J-J-; In re H-Y-Z-, 28 I. & N. Dec. 156, 161 (BIA 2020)) did not present a reviewable legal question; at most, it reflected a discretionary assessment. Accordingly, the court dismissed the petition.

Factual and Procedural Background

• 1994–1997: Patel entered without inspection (April 1994). After initial proceedings, his pro se asylum and withholding claims were denied on credibility grounds. The BIA remanded for due process; Patel then twice failed to appear and was ordered removed (Nov. 14, 1996; Nov. 14, 1997). One of those removal orders was reopened by the IJ (Feb. 13, 1997), during which Patel sought adjustment of status based on marriage to a U.S. citizen, but he failed to appear again.
• 2008–2011: Eleven years later, the IJ granted sua sponte reopening. Following a merits hearing, the IJ again found Patel not credible and denied asylum, withholding, and CAT protection (Mar. 24, 2010). The BIA dismissed his appeal (Nov. 4, 2011).
• 2023–2024: About twelve more years passed. Patel moved the BIA to reopen sua sponte to pursue adjustment of status, citing his long residence, family ties, and a U.S. citizen son serving in the Army. The BIA denied the motion as untimely and found no exceptional circumstances (June 28, 2024). Patel petitioned for Sixth Circuit review.

Detailed Analysis

Precedents and Authorities Cited

• Dada v. Mukasey, 554 U.S. 1 (2008): Describes a motion to reopen as procedural relief meant to address new evidence or changed circumstances. Confirms statutory time limits (90 days for most motions) and distinguishes that Congress later imposed these deadlines. Here, Dada frames why Patel’s ordinary motion to reopen was untimely and why exceptions matter.
• Statutory and Regulatory Framework:
  • 8 U.S.C. § 1229a(c)(7): Governs motions to reopen, including the 90-day filing deadline and enumerated exceptions (e.g., changed country conditions for asylum claims).
  • 8 C.F.R. § 1003.2(a), (c): Authorizes BIA motions to reopen (with limits) and also provides the BIA’s discretionary, non-statutory power to reopen sua sponte in exceptional situations.
• Sixth Circuit Reviewability Cases:
  • Thompson v. Lynch, 788 F.3d 638, 642 (6th Cir. 2015): Ordinary denials of statutory motions to reopen are reviewed for abuse of discretion.
  • Barry v. Mukasey, 524 F.3d 721, 723 (6th Cir. 2008); Rais v. Holder, 768 F.3d 453, 460 (6th Cir. 2014); Cuevas-Nuno v. Barr, 969 F.3d 331, 335 (6th Cir. 2020); Lopez v. Garland, 990 F.3d 1000, 1003 (6th Cir. 2021): Collectively establish that the BIA’s refusal to exercise sua sponte reopening is “committed to [its] unfettered discretion” and therefore not subject to judicial review in the Sixth Circuit.
• BIA Standards for Sua Sponte Reopening:
  • In re J-J-, 21 I. & N. Dec. 976, 984 (BIA 1997): Sets the “exceptional situations” benchmark for sua sponte reopening.
  • In re H-Y-Z-, 28 I. & N. Dec. 156, 161 (BIA 2020): Clarifies that “equities acquired after a final order of removal” generally do not constitute exceptional circumstances for sua sponte reopening.
• Sister Circuits on Limited Legal-Error Review:
  • Thompson v. Barr, 959 F.3d 476, 483 (1st Cir. 2020): Joins several circuits in recognizing limited jurisdiction to review constitutional claims or errors of law in the BIA’s sua sponte reopening denials.
  • Zhou v. Attorney General, 2022 WL 212311 (3d Cir. Jan. 25, 2022); Egemba v. Garland, 2024 WL 1433716 (2d Cir. Apr. 3, 2024): Even where limited review is recognized, courts will not second-guess the BIA’s application of a correct legal standard to the facts.
  • Hermiz v. Garland, 848 F. App’x 184, 187 (6th Cir. 2021): Notes the Sixth Circuit has not yet resolved whether to adopt the legal-error exception. Patel leaves that question open again.
• Additional Authorities Distinguished:
  • Wu v. Garland, 2023 WL 5021547 (6th Cir. Aug. 7, 2023): The Sixth Circuit similarly dismissed a petition where the BIA denied sua sponte reopening based on J-J- and H-Y-Z-.
  • In re Viteruo-Acuna, 2007 WL 129752 (BIA 2007): A pre-H-Y-Z- unpublished BIA decision granting sua sponte reopening in a particularly compelling scenario (U.S. citizen child and a path to legal status as a domestic-violence victim). The Sixth Circuit found no legal error in the BIA’s distinguishing of that case or in applying the general rule here.
  • Ping Zheng v. Holder, 701 F.3d 237 (7th Cir. 2012): Involved the statutory “changed country conditions” exception for asylum (8 U.S.C. § 1229a(c)(7)(C)(ii)), a scenario not at issue for Patel, who did not renew asylum or claim a statutory exception.
  • INS v. Abudu, 485 U.S. 94 (1988): Pre-dated Congress’s imposition of filing deadlines and addressed reopening in the asylum context; thus inapposite here (as Dada explains).

Legal Reasoning

The court’s analysis proceeds in two steps. First, it confirms—and Patel concedes—that his motion to reopen was untimely under 8 U.S.C. § 1229a(c)(7) and 8 C.F.R. § 1003.2(c), and that no statutory exception (such as changed country conditions for asylum claims) applies. In the ordinary course, denials of timely motions to reopen are reviewable for abuse of discretion; but untimely motions face a jurisdictional hurdle unless an exception applies or the BIA reopens sua sponte.

Second, it addresses the nature of the BIA’s sua sponte authority. Under 8 C.F.R. § 1003.2(a) and In re J-J-, the BIA may reopen in “exceptional situations.” However, longstanding Sixth Circuit precedent characterizes the BIA’s refusal to exercise that authority as discretionary and not judicially reviewable: such decisions are “committed to the unfettered discretion of the BIA” (Barry; Rais; Lopez; Cuevas-Nuno). The court reiterates that it therefore lacks jurisdiction to review the BIA’s refusal to reopen sua sponte.

The opinion acknowledges a significant inter-circuit development: several circuits have carved out limited jurisdiction to review denials of sua sponte reopening where the BIA’s decision rests on a legal error (for example, misunderstanding the scope of its own authority). But the Sixth Circuit has not yet adopted or rejected that exception (Hermiz). The court declines to decide that issue here because Patel identified no legal error. He challenged only the BIA’s discretionary conclusion that his post-order equities—long residence, family ties, and a U.S. citizen servicemember son—were not “exceptional” under BIA precedent (J-J-; H-Y-Z-). Even in circuits that recognize the legal-error exception, courts do not second-guess the BIA’s weighing of facts under a correct standard (Zhou; Egemba).

Finally, the court notes the BIA’s reliance on its own precedents that “equities acquired after a final order of removal” generally do not qualify as exceptional (J-J-; H-Y-Z-). Patel’s reliance on older, distinguishable, or context-specific decisions (such as the unpublished, pre-H-Y-Z- Viteruo-Acuna) or on cases invoking statutory exceptions (Ping Zheng; Abudu) did not transform the BIA’s discretionary assessment into a reviewable legal question.

Impact and Practice Implications

The decision has several important implications for immigrants and practitioners in the Sixth Circuit:

• Reinforced non-reviewability: The court emphatically reaffirms that it lacks jurisdiction to review the BIA’s denial of sua sponte reopening where only discretionary error is alleged. Petitioners cannot obtain circuit review merely by asserting the BIA should have exercised its discretion differently.
• Preserving a potential legal-error path: Although the Sixth Circuit again leaves open whether it would review a sua sponte denial premised on legal error, this decision underscores the strategic imperative to identify and clearly articulate any alleged legal error (e.g., misapprehension of the BIA’s authority, application of the wrong legal standard, or disregard of binding precedent). Without it, dismissal is likely.
• Post-order equities are rarely enough: The BIA’s more recent guidance (H-Y-Z-) narrows “exceptional situations,” generally discounting equities accrued after a final order—such as long residence, family formation, and community ties—as a basis for sua sponte reopening.
• Statutory exceptions remain critical: Where feasible, frame reopening within a statutory exception to the 90-day limit (for example, changed country conditions for asylum/withholding) rather than relying on the BIA’s sua sponte discretion. Cases like Ping Zheng are distinguishable precisely because a statutory exception triggered review.
• Unpublished disposition, but persuasive: Though not precedential (“not recommended for publication”), the opinion consolidates existing Sixth Circuit jurisprudence and signals the court’s continued unwillingness to review discretionary denials in the absence of a bona fide legal error claim.

Complex Concepts Simplified

• Motion to reopen: A request to re-open a closed immigration case to consider new evidence or changed circumstances that were not previously available. Generally must be filed within 90 days of the final decision.
• Sua sponte reopening: Even if a motion is untimely, the BIA can reopen on its own initiative in exceptional situations. This authority is regulatory, not statutory, and is highly discretionary.
• Exceptional situations: A high bar developed in BIA precedent (In re J-J-). Recent BIA decisions (In re H-Y-Z-) make clear that “equities” accrued after a final order—like family ties formed during the period of removability—typically do not meet the standard.
• Jurisdiction to review: Federal courts can review many BIA decisions, but not those “committed to agency discretion by law.” In the Sixth Circuit, the refusal to reopen sua sponte falls into this non-reviewable category unless (if the court were to recognize such an exception) a legal error is alleged and shown.
• Legal error vs. discretionary judgment: A legal error involves misinterpreting a statute, regulation, or the scope of the agency’s authority. A discretionary judgment is a choice among lawful options based on the agency’s assessment of facts and equities. Courts are far more likely to review the former than the latter.
• Changed country conditions exception: A statutory safety valve allowing late motions to reopen certain claims (e.g., asylum) if conditions in the home country materially changed after the original hearing. Not at issue for Patel.

Conclusion

Patel v. Bondi confirms a familiar but consequential principle in the Sixth Circuit: denials of sua sponte reopening by the BIA are not judicially reviewable when a petitioner alleges only that the BIA misweighed equities or otherwise abused its discretion. The court again notes, without deciding, that other circuits have recognized limited review for legal errors underpinning such denials. But because Patel identified no legal error—only arguments that his circumstances were exceptional—the Sixth Circuit dismissed for lack of jurisdiction.

The decision reinforces two practice points. First, timeliness matters: where possible, fit within the statutory framework for reopening, including any applicable exceptions. Second, if seeking review of a sua sponte denial, articulate a cognizable legal error; appeals that merely quarrel with the BIA’s discretionary assessment will almost certainly be dismissed. In short, Patel underscores the narrowness of judicial review in this corner of immigration law and the importance of framing errors as legal rather than merely equitable.