New opinion — Third Circuit rules that it generally lacks jurisdiction to review BIA’s refusal to consider late appeals

Abdulla v. A.G. — immigration — affirmance — Chagares

When an immigration petitioner misses the deadline to seek review by the Board of Immigration Appeals of the denial of their petition, the BIA has discretion to consider the late-filed appeal. The BIA has said it has the power to conduct this discretionary review (termed self-certification) when the appeal presents “exceptional circumstances,” a standard it hasn’t defined.

In this appeal, the Third Circuit addressed whether it has jurisdiction to review the BIA’s denial of self-certification based on its conclusion that the appeal did not present exceptional circumstances, and it held that it did not. In a similar context (challenges to BIA denials of sua sponte reopening based on extraordinary circumstances) the court had held that BIA discretionary denials were unreviewable unless (1) the BIA relied on an incorrect legal premise, or (2) the BIA limited its discretion via a settled course such that its discretion is reviewable. Assuming these exceptions applied in this context too, the court concluded that the petitioner here would not meet them. The court also rejected two merits arguments foreclosed by prior circuit precedent.

Joining Chagares were Matey and Fuentes. The appeal was decided without oral argument.