Full Opinion

USCA11 Case: 26-10463 Document: 16-1 Date Filed: 11/02/2026 Page: 1 of 7 NOT FOR PUBLICATION In the United States Court of Appeals For the Eleventh Circuit ____________________ No. 26-10463 Non-Argument Calendar ____________________ JI XING FUNG, Petitioner, versus U.S. ATTORNEY GENERAL, Respondent. ____________________ Petition for Review of a Decision of the Board of Immigration Appeals Agency No. A076-019-862 ____________________ Before ABUDU, TJOFLAT, and ANDERSON, Circuit Judges. PER CURIAM: Ji Xing Fung seeks review of an order of the Board of Immi- gration Appeals (“BIA”) denying his motion to reopen. Because we agree with the BIA that the motion was untimely, and because we USCA11 Case: 26-10463 Document: 16-1 Date Filed: 11/02/2026 Page: 2 of 7 2 Opinion of the Court 26-10463 lack jurisdiction to review the BIA’s decision not to exercise its sua sponte discretion to reopen removal proceedings, we deny the pe- tition. I. FACTS AND PROCEDURAL HISTORY Fung is a native and citizen of the People’s Republic of China. On January 24, 2000, the Immigration and Naturalization Service (“INS”) issued a Notice to Appear charging Fung with be- ing removable under INA § 212(a)(6)(A)(i), 8 U.S.C. § 1182(a)(6)(A)(i), for being an alien present without being admit- ted or paroled. Through counsel, Fung admitted to the allegations and conceded removability in May 2000. In June 2000, Fung applied for asylum, withholding of removal, and relief under the Conven- tion Against Torture, asserting fear of persecution for illegally im- migrating and for the debts his family owed in China. Following a hearing, an Immigration Judge denied Fung’s applications and or- dered him removed on July 11, 2000. Fung filed a timely appeal with the BIA. On November 7, 2002, the BIA affirmed the Immigration Judge’s decision without opinion. Fung married his wife in September 2010, and she was ap- proved for asylum in June 2014. Fung’s wife thereafter filed an I- 730 petition for alien relative on his behalf, which the Department of Homeland Security approved in October 2024. Roughly six months later, in April 2025, Fung moved the BIA to reopen and terminate removal proceedings pursuant to 8 USCA11 Case: 26-10463 Document: 16-1 Date Filed: 11/02/2026 Page: 3 of 7 26-10463 Opinion of the Court 3 C.F.R. § 1003.2(c)(3)(iii). Because Fung had derivative asylee status and was “eligible to file an application for adjustment of status,” he requested the BIA reopen and terminate his removal proceedings. In January 2026, the BIA denied Fung’s motion to reopen on two grounds. First, it found the motion was untimely because Fung filed the motion in 2025, over 23 years after the final administrative removal order was entered in 2002 and well beyond the 90-day deadline under 8 U.S.C. § 1229a(c)(7)(C)(i). Second, it found Fung had not established an exceptional situation that would warrant the exercise of its sua sponte authority. It also explained that equities acquired while remaining illegally in the United States after being ordered removed are generally not grounds for it to reopen pro- ceedings. In a footnote, the BIA stated that nothing in its decision undermined USCIS’s decision to grant Fung derivative asylee sta- tus, and its decision was without prejudice to the parties’ ability to file a joint motion to reopen. Fung timely appealed to our Court. II. DISCUSSION We review the denial of a motion to reopen for abuse of dis- cretion, considering “whether the BIA exercised its discretion in an arbitrary or capricious manner.” Jiang v. U.S. Att’y Gen., 568 F.3d 1252, 1256 (11th Cir. 2009). Generally, an alien must file any motion to reopen removal proceedings within 90 days of the date of the BIA’s final adminis- trative removal order. 8 U.S.C. § 1229a(c)(7)(C)(i); 8 C.F.R. § 1003.2(c)(2). This 90-day requirement is a “non-jurisdictional USCA11 Case: 26-10463 Document: 16-1 Date Filed: 11/02/2026 Page: 4 of 7 4 Opinion of the Court 26-10463 claim-processing rule” and is subject to equitable tolling. Avila-San- toyo v. U.S. Att’y Gen., 713 F.3d 1357, 1359–65 (2013) (en banc). To prevail on an equitable tolling claim, the petitioner must show “(1) that he has been pursuing his rights diligently, and (2) that some extraordinary circumstance stood in his way.” Id. at 1363 n.5 (cita- tions omitted). Alternatively, the 90-day deadline does not apply if the motion is based on evidence of changed country conditions in the home country that could not have been produced at the previ- ous hearing. 8 U.S.C. § 1229a(c)(7)(C)(ii). Even if the motion does not satisfy an exception to the ninety-day reopening deadline of 8 C.F.R. § 1003.2(c)(2), the Board may terminate cases before it where the alien has, since the initia- tion of proceedings, obtained a qualifying lawful status. 8 C.F.R. § 1003.1(m)(1)(i)(D), (m)(1)(ii). A noncitizen must exhaust his available administrative rem- edies by raising the issue on appeal before the BIA. Laguna Rivera v. U.S. Att’y Gen., 130 F.4th 915, 925 (11th Cir. 2025). The exhaustion requirement precludes our review of a claim that was not pre- sented to the BIA. Id. “The petitioner must have argued the core issue now on appeal before the BIA, and although the exhaustion requirement does not mandate well-developed arguments and pre- cise legal terminology, it requires the petitioner to provide infor- mation sufficient to enable the BIA to review and correct any errors below.” Id. (internal quotation marks omitted) As an initial matter, Fung did not exhaust his argument that his motion to reopen and terminate proceedings was not subject to USCA11 Case: 26-10463 Document: 16-1 Date Filed: 11/02/2026 Page: 5 of 7 26-10463 Opinion of the Court 5 the 90-day time limitation under 8 C.F.R. § 1003.2(c)(2), given the BIA’s authority to terminate proceedings under 8 C.F.R. § 1003.1(m). Although Fung captioned his motion as one to reopen and terminate proceedings and requested reopening of his removal proceedings “for the purpose of termination,” he cited only to the regulation for reopening proceedings under 8 C.F.R. § 1003.2(c)(3)(iii) and failed to reference 8 C.F.R. § 1003.1(m). By merely mentioning termination, Fung did not set out the discrete argument upon which he now relies, namely, that 8 C.F.R. § 1003.1(m)’s lack of time limitation supersedes the express time limitation in 8 C.F.R. § 1003.2(c)(2). See Laguna Rivera, 130 F.4th at 925. Because the Government raised Fung’s failure to exhaust this issue, we are precluded from reviewing this claim. Id. Because Fung failed to exhaust his § 1003.1(m) argument be- low, our review is limited to the timeliness of his motion under § 1003.2(c)(3)(iii). The BIA did not abuse its discretion in denying Fung’s motion to reopen and terminate removal proceedings be- cause it was filed well beyond the 90-day limitation. None of the exceptions to the 90-day limitation apply: Fung did not assert that equitable tolling should apply to his motion, and he did not allege that he had been diligently pursuing his rights and hindered by an extraordinary circumstance. Avila-Santoyo, 713 F.3d at 1363 n.5. Fung also failed to allege any changed country conditions which would have excused the untimely filing. We deny this portion of Fung’s petition. USCA11 Case: 26-10463 Document: 16-1 Date Filed: 11/02/2026 Page: 6 of 7 6 Opinion of the Court 26-10463 Despite the untimeliness of Fung’s motion, the BIA retained discretion to reopen the removal proceedings sua sponte. 8 C.F.R. § 1003.2(a). Yet the BIA chose not to exercise that discretion be- cause it concluded the kinds of exceptional circumstances needed to grant such relief did not exist here. Regrettably for Fung, we lack jurisdiction to review the BIA’s discretionary decision not to exer- cise this authority. The decision to reopen sua sponte is “commit- ted to agency discretion by law,” and this discretion is so wide and standardless that it is non-reviewable. Lenis v. U.S. Att’y Gen., 525 F.3d 1291, 1294 (11th Cir. 2008). 1 The provision at issue here reposes very broad discretion in the BIA “to reopen or reconsider” any motion it has rendered at any time or, on the other hand, “[to] deny a motion to reopen.” 8 C.F.R. § 1003.2(a). The discretion accorded in this provision is so 1 It is undisputed that under the Administrative Procedure Act, judicial review is not available when “agency action is committed to agency discretion by law.” 5 U.S.C. § 701(a)(2). As the Supreme Court explained in Heckler v. Chaney: [R]eview is not to be had if the statute is drawn so that a court would have no meaningful standard against which to judge the agency’s exercise of discretion. In such a case, the statute (“law”) can be taken to have “committed” the decisionmaking to the agency’s judgment absolutely. This construction avoids conflict with the “abuse of discretion” standard of review in § 706—if no judicially manageable standards are available for judging how and when an agency should exercise its discre- tion, then it is impossible to evaluate agency action for “abuse of discretion.” 470 U.S. 821, 830, 105 S.Ct. 1649, 1655 (1985). USCA11 Case: 26-10463 Document: 16-1 Date Filed: 11/02/2026 Page: 7 of 7 26-10463 Opinion of the Court 7 wide that “even if the party moving has made out a prima facie case for relief,” the BIA can deny a motion to reopen a deportation or- der. Id. No language in the provision requires the BIA to reopen a deportation proceeding under any set of particular circumstances. Instead, the provision merely provides the BIA the discretion to re- open immigration proceedings as it sees fit. Accordingly, we dis- miss this portion of Fung’s petition. III. CONCLUSION For the foregoing reasons, the petition for review is denied in part and dismissed in part. PETITION DENIED IN PART, DISMISSED IN PART.