OPINION
PER CURIAM.
Avni Jahjaga petitions for review of the removal Order issued by the Board of Immigration Appeals ("BIA") denying his motion to reopen requesting asylum on humanitarian grounds. For the reasons set forth below, we will dismiss the petition for lack of jurisdiction. The facts and procedural travel of this case are well-known to the parties and have been recounted in our previous decision, Jahjaga v. United States Attorney General, 512 F.3d 80 (3d Cir. 2008). Jahjaga is a native of Serbian Montenegro and citizen of Kosovo whose applications for asylum and other relief were denied after a removal hearing in 2003. The Board affirmed the IJ's denial of asylum relief in 2005 based on the lack of sufficient documentary evidence to support Jahjaga's claim that he was shot in the spine in 1999 (rendering him paraplegic) on account of his political activities as a ranking member of the Democratic League of Kosovo ("DLK"). Instead of filing a petition for review, Jahjaga' filed a motion to reopen in which he supplied the corroborating evidence that the BIA had identified as central to his asylum claim. The Board denied reopening in August 2005, ruling that the documentary evidence was not new because it was reasonably available before the hearing, and it was insufficient to show changed country conditions. The Board denied Jahjaga's second motion to reopen as untimely, rejecting his claim that he had not received the August 2005 order. We remanded the matter to the BIA to consider the weight to be accorded Jahjaga's claim of non-receipt of the Board's order. Jahjaga, 512 F.3d at 85-86. On remand, the BIA reaffirmed its denial of Jahjaga's motion to reopen. (See BIA Decision dated July 28, 2008.) Jahjaga did not file a petition for review.
On October 6, 2008, Jahjaga filed a motion to reopen seeking asylum on humanitarian grounds pursuant to 8 C.F.R. § 1208.13(b)(1)(iii), and sua sponte reopening by the Board. Jahjaga claimed that he joined the DLK in 1990, becoming vice-chairman in 4997. According to Jahjaga, he was targeted by the Serbian government and by Serbian extremists for his political activities. He said that he was arrested by Serbian police and beaten twice in 1990 and 1993, and in 1997, he was forced to go into hiding. His father and mother, both of whom were Albanians, were killed by Serbs.
In 1999, Jahjaga's party, the DLK, split with Albanian extremists who advocated violent expulsion of all non-Albanians from Kosovo. Shortly after the split, Jahjaga began receiving threats of harm from the Albanian extremists. Months later, in November 1999, he was shot in the back by an unknown assailant, which left him a paraplegic. He continued to receive threats in the hospital and, in 2000, shots were fired into his house while he was recuperating there. In 2001, Jahjaga was forced into hiding after his house was fire-bombed. In April 2002, Jahjaga decided to leave Kosovo when he learned that authorities were looking for him. He claimed that he no longer had any close family ties in Kosovo as his siblings and close relatives have all moved to the United States. In support of his motion to reopen, Jahjaga submitted the same documentary evidence that the BIA had previously rejected as not "new" in 2005.
The evidence included a certification of Jahjaga's membership and party positions held in the DLK from 1990 through 1999 ("DLK Certificate"), affidavits and statements from his siblings, in-laws, and friends corroborating his asylum claim, death certificates for his parents indicating that each of them was "killed by Serbs," verification from the Association of Disabled People of Kosovo confirming Jahjaga's paraplegic condition, and medical records documenting his gunshot wound to the spine.
The Board denied Jahjaga's request for relief on May 9, 2009. The Board reasoned that Jahjaga's failure to provide corroborating evidence of past persecution at his removal hearing rendered him "unable to establish a nexus between the harm he claims to have suffered and his political opinion" for purposes of establishing grounds for humanitarian relief. (J.A. at 4.) Thus, according to the Board, because of Jahjaga's failure to show "past persecution," neither the IJ nor the BIA had reason to consider asylum for humanitarian reasons at the hearing or on appeal. ( Id.) As for Jahjaga's claim that he was unable to return to Kosovo because he could not obtain medical treatment for his paralysis there and had no one to care for him, the Board noted that the Department of Homeland Security, not the Board, could grant deferred action status for medical reasons as a matter of discretion. ( Id.) The Board declined to reopen proceedings sua sponte and denied the motion. Jahjaga filed this timely petition for review.
In Sheriff v. Attorney General, 587 F.3d 584 (3d Cir. 2009), we explained that, under 8 C.F.R. § 1208.13(b)(1)(iii), an alien who has suffered past persecution and who does not face a reasonable possibility of future persecution may be eligible for a discretionary grant of asylum on humanitarian grounds if (1) he can demonstrate compelling reasons, arising out of the severity of the past persecution, for being unwilling or unable to return to the designated country, or (2) he has established a reasonable possibility that he may suffer other serious harm upon removal to that country, which does not arise out of the past persecution but which is "so serious as to equal the severity of persecution." Id. at 593 596.
Jahjaga contends that the Board wrongly denied reopening to consider his request for humanitarian asylum and erroneously failed to consider his documentary evidence of past persecution under 8 C.F.R. § 1003.2(c). The Government asserts that the BIA did not abuse its discretion in denying reopening because there was no record evidence-of past persecution warranting humanitarian relief. The Government also argues that, to the extent that the BIA declined to reopen sua sponte pursuant to its authority under 8 C.F.-R. § 1003.2(a), we lack jurisdiction to review Jahjaga's claim.
We begin and end with the threshold question of our jurisdiction to review the BIA's decision in Jahjaga's case. Pursuant to § 1003.2(a), the BIA may sua sponte reopen a case at any time. A petitioner must show an exceptional situation to make a prima facie case for sua sponte reopening. Cruz v. Attorney General, 452 F.3d 240, 249 (3d Cir. 2006). However, the BIA has discretion to deny a motion to reopen even if a prima facie case is made. Id. We have held that the BIA's failure to sua sponte reopen a decision based on its unfettered discretion is not reviewable. Calle-Vujiles v. Ashcroft, 320 F.3d 472, 474-75 (3d Cir. 2003).
Here, the BIA noted that Jahjaga requested "reopening for `humanitarian asylum' . . . and for sua sponte reopening." After providing the legal standard for humanitarian asylum with citations to the regulation and relevant caselaw, the BIA stated that neither the IJ nor the Board had reason to consider humanitarian asylum based on the hearing record. The Board then stated that it "declines to re-open proceedings under its discretionary sua sponte authority at 8 C.F.R. § 1003.2(a). The motion to reopen will, therefore, be denied." Notably, the BIA did not address the question whether the motion to reopen was number or time-barred under 8 C.F.R. § 1003.2(c). We read the BIA's decision declining to reopen proceedings as an exercise of its unfettered discretion. Thus, we lack jurisdiction to review it. Calle-Vujiles, 320 F.3d at 474-75.
The facts in this case are not similar to those that we discussed in Cruz v. Attorney General, 452 F.3d 240, 249 (3d Cir. 2006), where we questioned whether the BIA could, without explanation or reason, depart from a settled practice when declining to exercise its authority to sua sponte reopen proceedings. Here, the BIA has not adopted, either explicitly or through practice, a policy of applying a particular rule or standard to its consideration of motions to reopen based on a claim of humanitarian asylum.
Accordingly, we will dismiss for lack of jurisdiction Jahjaga's petition for review of the Board's denial of reopening pursuant to 8 C.F.R. § 1003.2(a).
11, 2010 editorial in the
Detroit News, "Statistics suggest more than half the drivers in Detroit ignore state law by driving without coverage because they can't afford the premiums. That's a problem for their fellow motorists and for the state."http://detnews.com/article/20100711/OPINION01/With-credit-s coring-issue-decided-policymakers-should-explore-other-ways-to- trim-auto-insurance-costs#ixzzOtUKFqijI (accessed July 14, 2010).
According to the Insurance Institute of Michigan, as of 2008, Michigan had 8.2 million registered motor vehicles.http:// www.iiminfo.org/Portals/44/registered%20vehicles%2008.pdf (accessed June 28, 2010).
The majority's decision will not only result in increased automobile insurance premiums, and more uninsured vehicles on our roads and highways, but it will also mean that substantially more lawsuits will be filed, even though an express goal of the no-fault act was to reduce "excessive litigation of motor vehicle accident cases." Cassidy, 415 Mich at 500. Yet, under the majority's opinion, more lawsuits will make their way to juries for the consideration of noneconomic loss benefits, straining our already overburdened courts. As it is, no-fault automobile negligence cases remain a dominant factor in Michigan civil filings every year. Indeed, of the 47, 300 new civil case filings in Michigan circuit courts in 2009, 9,067 "approximately 20 percent of all civil cases — were automobile related. Given that many no-fault claims are settled without the filing of a lawsuit, the number of claims potentially affected by the majority's ruling is even higher.
If one reviews the new majority's decisions, it is difficult not to conclude that the only coherent theme of their jurisprudence is the fostering of litigation. They have virtually guaranteed as much by introducing uncertainty, doubt, and confusion into the law, and by gratuitously interjecting irrelevant considerations into their opinions. See, e.g., O'Neal, 487 Mich at 506 n 22 (opinion by HATHAWAY, J.) (gratuitously calling into question the viability of Wickens, a case having no relevance to that dispute); Zahn v Kroger Co, 483 Mich 34; 764 NW2d 207 (2009) (gratuitously observing that the parties to the contract were business entities "with equal bargaining power," as if the latter circumstance, not at all relevant in that case, might be relevant in a different case); Anglers, 486 Mich at 982 (refusing to dismiss a moot case); Scott v State Farm Mut Auto Ins Co, 483 Mich 1032 (2009) (relaxing the causal connection that must exist between an injury sustained and the ownership, maintenance or use of a motor vehicle in no-fault cases); Decosta v Gossage, 486 Mich 116; 782 NW2d 734 (2010) (refusing to enforce notice-of-intent requirements under MCL 600.2912b(2); Chambers v Wayne Co Airport Auth, 483 Mich 1081 (2009), Beasley v Michigan, 483 Mich at 1025, and Ward, 485 Mich at 917 (all refusing to enforce pre-litigation notice requirements); Adair v Michigan, 486 Mich 468; 785 NW2d 119 (2010) (reducing a Headlee Amendment plaintiffs burden of proof); Lansing Sch Ed Ass'n, 487 Mich at 352-353 (nullifying historical standards for determining whether a plaintiff has "standing" to bring a lawsuit); Univ of Mich v Titan Ins Co, 487 Mich at 292-293 (eroding the no-fault act's one-year-back rule); O'Neal, 487 Mich at 504-506 (opinion by HATHAWAY, J.) (concluding that whichever lost-opportunity formula benefits the plaintiff the most in any particular case is the correct formula to be utilized); Vanslembrouck v Halperin, 483 Mich 965 (2009) (incorrectly characterizing MCL 600.5851(7) as a statute of limitations that can be tolled rather than a saving provision that cannot be tolled); Sazima v Shepherd Bar Restaurant, 483 Mich 924 (2009) (expanding what injuries can be considered to have occurred "in the course of employment" for purposes of workers' compensation); and the 2010 amendments of MCR 2.112 and MCR 2.118,485 Mich (undermining affidavit of merit requirements). In the instant case, of course, the majority, by undermining the no-fault compromise struck by the Legislature, makes it easier for plaintiffs to sue for noneconomic loss benefits.
See 2009 Annual Report of the Michigan Supreme Court, pp 35-36, available athttp://www.courts.michigan.gov/scao/resources/publications/ stattstics/2009/2009execsum.pdf (accessed June 28, 2010).
The majority's decision will also increase the costs incurred by the state of Michigan itself (and, of course, the taxpayers who fund those costs). In the course of arguing that Kreiner should not be overruled because it "clarifies rather than expands the statutory language," the Attorney General's amicus curiae brief warns that if Kreiner is overruled, as a self-insured entity, the state will realize "a direct, significant increase in the cost of its litigation and coverage obligations."
It was reported that, as of 2007, the state's vehicle fleet totaled 11, 856.http://www.greatlakeswiki.org/index.php/Michigan_state_flee t_ efficiency (accessed June 28, 2010).
Finally, and as a consequence of all the above, the majority's decision will almost certainly call into question the long-term economic integrity of the present no-fault system in Michigan. By nullifying the legislative compromise that was struck when the no-fault act was adopted — a compromise grounded in concerns over excessive litigation, the over-compensation of minor injuries, and the availability of affordable insurance" the Court's decision today will restore a legal environment in which each of these hazards reappears and threatens the continued fiscal soundness of our no-fault system.
I reiterate that expected increases in no-fault premiums are not pertinent to our analysis of the legal issues in this case, beyond making the point that the majority is undoing the legislative compromise embodied by the no-fault act and that there will be significant practical consequences to doing this.
Iv CONCLUSION
The no-fault automobile insurance act, in MCL 500.3135(1), provides that "[a] person remains subject to tort liability for noneconomic loss caused by his or her ownership, maintenance, or use of a motor vehicle only if the injured person has suffered death, serious impairment of body function, or permanent serious disfigurement." The issue here is whether plaintiff has suffered a serious impairment of body function. "`[S]erious impairment of body function' means an objectively manifested impairment of an important body function that affects the person's general ability to lead his or her normal life." MCL 500.3135(7).
In Kreiner, 471 Mich at 132-133, this Court held that in determining whether the impairment affects the plaintiffs general ability to lead his normal life, "a court should engage in a multifaceted inquiry, comparing the plaintiffs life before and after the accident as well as the significance of any affected aspects on the course of the plaintiffs overall life." In addition, Kreiner indicated that certain factors, such as the duration of the impairment, may be of assistance in evaluating whether the plaintiffs general ability to lead his normal life has been affected. Id. at 133.
The majority overrules Kreiner, rejecting these factors and holding that temporal considerations are wholly or largely irrelevant in determining whether an impairment affects the plaintiffs general ability to lead his or her normal life. The majority apparently holds instead that as long as a plaintiffs general ability to lead his normal life has been affected for even a single moment in time, the plaintiff has suffered a serious impairment of body function. This conclusion is at odds with the actual language of the statute and nullifies the legislative compromise embodied in the no-fault act. Because I believe that Kreiner was correctly decided and that temporal considerations are, in fact, highly relevant, and indeed necessary, in determining whether an impairment affects the plaintiffs general ability to lead his normal life, I would sustain Kreiner. By nullifying the legislative compromise over the no-fault act — a compromise grounded in concerns over excessive litigation, the over-compensation of minor injuries, and the availability of affordable insurance — the Court's decision today will revive a legal environment in which each of these hazards reappears and threatens the continued fiscal integrity of our no-fault system.
Because I do not believe that the lower courts erred in concluding that plaintiff has not suffered a serious impairment of body function, I would affirm the judgment of the Court of Appeals.
CORRIGAN and YOUNG, JJ., concurred with MARKMAN.