Appealing Denied Motion to Reopen (1)
A discretionary decision issued by the bia cannot be appealed to higher court
We hereby join our sister circuits in holding that a decision of the BIA whether to reopen a case sua sponte under 8 C.F.R. § 1003.2(a) is entirely discretionary and therefore beyond our review — in other words, we lack jurisdiction to review the BIA's decision not to reopen Ali's immigration proceedings sua sponte.
Ali v. Gonzales, 448 F.3d 515, 518 (2d Cir. 2006)
This case asserts that once the BIA decides against reopening a case sua sponte (on its own accord), then it cannot be appeal to a higher court. The only way to overturn a discretionary decision from the BIA is to file a motion to reopen with the BIA. This can only be done once after the initial decision of the BIA.
" We hold that the Ekimians' motion to reopen was untimely under 8 C.F.R. § 3.2(c)(2), and that we lack jurisdiction to review a BIA decision not to reopen the proceeding sua sponte under 8 C.F.R. § 3.2(a)." Ekimian v. I.n.s, 303 F.3d 1153, 1154 (9th Cir. 2002)