Background
Nyome Nzang Kome Ananga, a native and citizen of Cameroon, petitioned for review of a Board of Immigration Appeals decision denying his motion to reopen and declining to reopen his immigration proceedings sua sponte. The petition sought review of the BIA’s order in Agency No. A097 191 427. The Fifth Circuit considered the case on its summary calendar and issued an unpublished per curiam opinion.
The court identified different standards for the issues before it. Denial of a motion to reopen receives highly deferential abuse-of-discretion review. The BIA’s decision is upheld unless it is capricious, racially invidious, utterly without foundation in the evidence, or otherwise so irrational that it is arbitrary rather than the product of a perceptible rational approach. Questions of law are reviewed de novo, while factual findings are reviewed for substantial evidence.
The Court’s Holding
The court dismissed the petition insofar as it challenged the BIA’s refusal to reopen sua sponte. Fifth Circuit precedent generally precludes jurisdiction over that discretionary refusal. Ananga relied on Kucana v. Holder for jurisdiction over legal or constitutional challenges, but the court explained that the Supreme Court reserved that question in footnote 18 rather than resolving it. The court also recognized its own exception for reviewing a BIA determination that a legal barrier prevents the agency from exercising sua sponte discretion in the first instance. That exception did not apply because the BIA had not denied sua sponte reopening on that basis.
The court denied the petition as to the motion to reopen. It explained that an alien may move to reopen to apply for asylum, withholding of removal, or Convention Against Torture relief based on changed conditions in the country of removal, and that such a motion is not subject to a filing-time limit. Under Djie v. Garland, however, the statutory number bar in 8 U.S.C. § 1229a(c)(7)(A) applies to changed-country-conditions motions notwithstanding the contrary regulation at 8 C.F.R. § 1003.2(c)(3).
Ananga’s request to reconsider Djie after Loper Bright Enterprises v. Raimondo failed because Djie did not rely on Chevron deference. The court described the number bar as a nonjurisdictional claim-processing rule and stated that, when raised as it was here, the bar requires denial of the petition. It also rejected Ananga’s case-specific argument for equitable tolling of the number bar, citing Garcia Morin v. Bondi. The petition was therefore dismissed in part and denied in part.
Key Takeaways
- The Fifth Circuit lacked jurisdiction over the challenge to the BIA’s discretionary refusal to reopen sua sponte; the legal-barrier exception did not apply on these facts.
- The statutory number bar applies to changed-country-conditions motions to reopen under circuit precedent, even though such motions have no filing deadline.
- Loper Bright did not undermine Djie because that decision did not depend on Chevron deference.
- The court rejected equitable tolling on the circumstances presented and denied review of the motion-to-reopen ruling.
Why It Matters
The decision separates the two dispositions clearly: dismissal for the sua sponte challenge and denial for the motion-to-reopen challenge. It also reinforces that the number bar’s nonjurisdictional status does not prevent its enforcement when raised.
For practitioners seeking reopening based on changed country conditions, the absence of a time limit does not eliminate the Fifth Circuit’s numerical restriction. Arguments for equitable tolling or reconsideration of Djie require more than invoking Loper Bright.