We disagree. Kennedy relies primarily on three BIA decisions: In re X-G-W-, 22 I. N. Dec. 71 (BIA 1998), abrogated on other grounds by In re G-C-L-, 23 I. N. Dec. 359 (BIA 2002); In re G-D-, 22 I. N. Dec. 1132 (BIA 1999); and In re Beckford, 22 I. N. Dec. 1216 (BIA 2000). These decisions do not establish a general policy of reopening on the basis of a change in the law.
Indeed, by requiring Mendez-Gutierrez to show prima facie eligibility for relief in order to prevail on his request for reinstatement of his application, the BIA itself turned to the standards applicable to the granting of motions to reopen. See Ramirez-Alejandre v. Ashcroft, 319 F.3d 365, 376 (9th Cir. 2003) (BIA may not grant a motion to reopen unless applicant previously has established a prima facie case of eligibility for relief); see also In re G-C-L, 23 I. N. Dec. 359, 361 (BIA 2002) (prima facie eligibility for asylum is a requirement for granting a motion to reopen). In arguing that it was correct for the BIA to require a showing of prima facie eligibility, the government acknowledges the similarity between Mendez-Gutierrez's reinstatement request and a motion to reopen, noting that, "like a motion to reopen, his reinstatement request sought to bring a closed matter back to life."
Petitioner claims the Board committed two reviewable legal errors. First, citing Matter of G-C-L-, 23 I&N Dec. 359 (BIA 2002), the Board explained "that an alien's diligence in seeking to reopen proceedings is an appropriate consideration when determining whether to grant sua sponte reopening." A.R. 5.
Finally, Carlos-Rivera has not shown that the BIA erred by departing from its own established policy. See Matter of G-C-L-, 23 I. &N. Dec. 359, 362 (BIA 2002). Therefore, we lack jurisdiction to review the BIA's denial of Carlos-Rivera's motion.
The BIA properly declined to reopen sua sponte to permit Bajwa to avoid the June 1999 deadline to file a late motion to reopen to apply for CAT relief. See In re G-D-, 22 I. & N. Dec. 1132, 1133-34 (BIA 1999) ("[W]e invoke our sua sponte authority sparingly, treating it not as a general remedy for any hardships created by enforcement of the time and number limits in the motions regulations, but as an extraordinary remedy reserved for truly exceptional situations."); see also In re G-C-L-, 23 I. & N. Dec. 359, 361-62 (BIA 2002) (declining to continue reopening proceedings sua sponte to permit applications for asylum based on a change in law that occurred more than five years earlier). For the foregoing reasons, the petition for review is DENIED.
Assuming, arguendo, he presents a legal argument conferring jurisdiction under ยง 1252(a)(2)(D), the assertion is unavailing. Barillas maintains, in the light of recent developments in the law, the BIA erred by determining he failed to show he was statutorily eligible for relief from removal. Contrary to his assertion, In re X-G-W-, 22 I. & N. Dec. 71 (BIA 1998), superseded by In re G-C-L-, 23 I. & N. Dec. 359 (BIA 2002), does not stand for the proposition that a motion to reopen is the proper vehicle for addressing changes in the law; therefore, the BIA did not err in construing the motion as one to reconsider. See Zhao v. Gonzales, 404 F.3d 295, 301 (5th Cir. 2005) (noting a motion to reopen seeks to introduce new evidence, and a motion to reconsider seeks reevaluation of the record evidence only).
Moreover, while what constitutes a "reasonable time" is nowhere defined with exactitude, at least two members of the BIA have suggested that, barring extraordinary circumstances, "'a reasonable period' for bringing an asylum claim based on 'changed circumstances' is . . . 1 year from the point at which the circumstances changed." In re G-C-L-, 23 I. N. Dec. 359, 364 (B.I.A. 2002) (Pauley, Board Member, dissenting). This proposition of one year as a bench mark for what constitutes a "reasonable time" supports the notion that had Lumataw's 2003 derivative application filing date been taken into account, in light of the 2002 events in Indonesia, the agency could have found that Lumataw filed within a reasonable time after "changed circumstances" in Indonesia arose.
Evangelista urges us to find that the BIA has a policy of reviewing cases when faced with a fundamental change in the law, citing, as support, the BIA's reopening of the Chinese coerced population control cases after a statutory change that recognized that type of claim as supporting "refugee" status. See In re X-G-W-, 22 I. N. Dec. 71 (BIA 1998), abrogated on other grounds by In re G-C-L, 23 I. N. Dec. 359 (BIA 2002). In In re X-G-W-, however, the BIA explicitly announced a policy to only accept otherwise-barred motions to reopen in a limited category of cases.
See Wei Guang Wang, 437 F.3d at 275; Kaur, 413 F.3d at 233-34. Finally, we note that Xiao has abandoned any challenge to the IJ's findings that his motion did not fall within the exemptions established by Matter of G-C-L-, 23 I. N. Dec. 359 (B.I.A. 2002), or 8 C.F.R. ยง 208.18(b)(2), because he did not challenge those findings before this Court. See Yueqing Zhang v. Gonzales, 426 F.3d 540, 541 n. 1, 545 n. 7 (2d Cir. 2005).
Here, it is undisputed that Lin's motion to reopen was untimely. While Lin argues that he is exempt from the filing deadline under the BIA's decision in In re X-G-W-, 22 I. N. Dec. 71 (B.I.A. 1998), the BIA properly found that argument unavailing, based on its subsequent decision in In re G-C-L-, 23 I. N. Dec. 359, 362 (B.I.A. 2002). In that case, the BIA withdrew from its policy of granting untimely motions to reopen by applicants claiming eligibility for asylum based solely on coercive population control policies, effective 90 days from the date of that decision, which was issued in April 2002.