Opinions of the United
2007 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


7-18-2007

Bhoja v. Atty Gen USA
Precedential or Non-Precedential: Non-Precedential

Docket No. 05-5401




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                                                                 NOT PRECEDENTIAL

                       UNITED STATES COURT OF APPEALS
                            FOR THE THIRD CIRCUIT


                                       No. 05-5401


                                JEROS FEROZ BHOJA,
                                              Petitioner

                                            v.

                ATTORNEY GENERAL OF THE UNITED STATES,
                                       Respondent


                   PETITION FOR REVIEW OF A DECISION OF
                    THE BOARD OF IMMIGRATION APPEALS
                            Agency No. A73-186-291
                        Immigration Judge: Paul W. Schmidt


                      Submitted Under Third Circuit LAR 34.1(a)
                                   June 26, 2007


              Before: BARRY, FUENTES, and JORDAN, Circuit Judges

                             (Opinion Filed: July 18, 2007)


                                        OPINION



BARRY, Circuit Judge

      Petitioner, Jeros Feroz Bhoja, a native and citizen of India, petitions for review of

an order of the Board of Immigration Appeals (“BIA”) denying his motion to reopen his
removal proceedings. Because we lack jurisdiction, we will dismiss the petition.

                                               I.

       Bhoja entered the United States in 1994. In July 2002, the BIA affirmed the

Immigration Judge’s ruling that Bhoja was not entitled to asylum or withholding of

removal. Following this ruling, Bhoja moved to reopen and for reconsideration. In

December 2002, the BIA denied that motion. We denied his petition for review on March

5, 2004. See Bhoja v. Ashcroft, 89 Fed. Appx. 348 (3d Cir. 2004).

       In September 2005, Bhoja filed a second motion to reopen with the BIA. Bhoja

claimed that he was entitled to adjustment of status pursuant to section 245(i) of the

Immigration and Nationality Act, 8 U.S.C. § 1255(i), because of an approved Petition I-

140 filed by his employer. Bhoja requested that the BIA reopen his case sua sponte

pursuant to the authority granted by 8 C.F.R. § 1003.2(a).

       By order dated November 15, 2005, the BIA denied Bhoja’s motion. The BIA

noted that the motion was numerically barred and ruled that, given its “limited

discretionary powers” to reopen proceedings sua sponte, it would not exercise its

discretion to reopen Bhoja’s case. (J.A. 2.)

                                               II.

       Bhoja argues that the BIA abused its discretion in refusing to exercise its sua

sponte power to reopen his case. According to Bhoja, because he would be entitled to

relief, his case presents the “exceptional situation” in which the BIA may exercise its sua

sponte powers. See In re J-J-, 21 I. & N. Dec. 976 (BIA 1997); see also 8 C.F.R. §

                                               2
1003.2(a).

       As we have previously explained regarding the regulation at issue here, however,

“[b]ecause the BIA retains unfettered discretion to decline to sua sponte reopen or

reconsider a deportation proceeding, this court is without jurisdiction to review a decision

declining to exercise such discretion to reopen or reconsider the case.” Calle-Vujiles v.

Ashcroft, 

, 475 (3d Cir. 2003); see also Ali v. Gonzales, 

, 517

(2d Cir. 2006). As such, we are without jurisdiction to consider Bhoja’s petition.

                                            III.

       For the foregoing reasons, we will dismiss Bhoja’s petition for lack of appellate

jurisdiction.




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