Toral Baldevbhai Patel v. U.S. Attorney General
CourtCourt of Appeals for the Eleventh Circuit
Date FiledOctober 29, 2026
Docket25-13936
StatusUnpublished
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Full Opinion
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NOT FOR PUBLICATION
In the
United States Court of Appeals
For the Eleventh Circuit
____________________
No. 25-13936
Non-Argument Calendar
____________________
TORAL BALDEVBHAI PATEL,
Petitioner,
versus
U.S. ATTORNEY GENERAL,
Respondent.
____________________
Petition for Review of a Decision of the
Board of Immigration Appeals
Agency No. A201-235-109
____________________
Before NEWSOM, BRASHER, and BLACK, Circuit Judges.
PER CURIAM:
Toral Patel petitions for review of the order by the Board of
Immigration Appeals (BIA) denying her motion to reopen and ter-
minate her removal proceedings. Patel contends the BIA abused
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2 Opinion of the Court 25-13936
its discretion in declining to reopen her removal proceedings be-
cause her bona fide deferred action status and employment author-
ization granted by the United States Citizenship and Immigration
Services (USCIS), combined with her over 20 years of law-abiding
residence in the United States and her pending U visa application,
constituted changed circumstances warranting equitable consider-
ation. She contends the BIA failed to substantively engage with
those circumstances and denied her due process. Patel further as-
serts the BIA applied an unnecessarily restrictive view of the “ex-
ceptional situation” standard governing its sua sponte authority to
reopen cases, contending that her combination of positive personal
circumstances and pending U visa application should have qualified
as an exceptional situation warranting sua sponte reopening. The
Government moves for summary denial in part and dismissal in
part of the petition of review, and to stay the briefing schedule.
I. DISCUSSION
A. Motion to Reopen
“An alien who is subject to a final order of removal and
wishes to reopen the proceedings must move to reopen within 90
days of the date on which the removal order became final.” Mei Ya
Zhang v. U.S. Att’y Gen., 572 F.3d 1316, 1319 (11th Cir. 2009). That
deadline does not apply if the motion “is based on changed country
conditions arising in the country of nationality or the country to
which removal has been ordered, if such evidence is material and
was not available and would not have been discovered or presented
at the previous proceeding.” 8 U.S.C. § 1229a(c)(7)(C)(ii). But this
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25-13936 Opinion of the Court 3
exception does not apply to a change in the movant’s own personal
circumstances. Mei Ya Zhang, 572 F.3d at 1319.
The BIA did not abuse its discretion in denying Patel’s mo-
tion to reopen. See id. (reviewing for abuse of discretion the denial
of a motion to reopen removal proceedings). The BIA did not
abuse its discretion in denying Patel’s motion to reopen because
she filed it over 12 years after the 90-day statutory deadline from
the date when her removal order became final and she did not
demonstrate her eligibility for an exception to the time-bar by in-
troducing material and previously unavailable evidence of changed
conditions in India. See id. Although Patel argues that USCIS’s
grant of a bona fide deferred action and employment authorization
while her U visa application was pending constituted a material
change in circumstances warranting the grant of her motion, that
change related only to her personal circumstances, and a relevant
material change in circumstances for purposes of the time-bar for
filing a motion to reopen is limited to changes that occur in a peti-
tioner’s home country rather than changes in personal circum-
stances. See id. Thus, the BIA’s denial of her untimely motion was
not arbitrary or capricious. 8 U.S.C. § 1229a(c)(7)(C)(ii); Ali v. U.S.
Att’y Gen., 443 F.3d 804, 808 (11th Cir. 2006) (explaining the abuse
of discretion standard of review limits our review “to determining
whether there has been an exercise of administrative discretion and
whether the matter of exercise has been arbitrary or capricious”).
Patel asserts that equitable considerations supported her
motion, such as her law-abiding and productive life in the United
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4 Opinion of the Court 25-13936
States, but she has not provided any support for her contention that
such considerations are relevant to the BIA’s denial of an untimely
motion to reopen. See Fed. R. App. P. 28(a)(8) (stating an appel-
lant’s brief must contain their “contentions and the reasons for
them, with citations to the authorities and parts of the record on
which the appellant relies”). Patel’s contention the BIA failed to
engage with Matter of Coronado-Acevedo also fails because that case
grants the BIA discretion to end removal proceedings when doing
so is necessary for a petitioner to seek relief from the USCIS, and
the BIA noted in its denial of her motion that Patel could still pur-
sue a U visa irrespective of her removal order. See Matter of Coro-
nado-Acevedo, 28 I. & N. Dec. 648, 651-52 (A.G. 2022) (determining
the BIA has the discretion to grant termination or dismissal of re-
moval proceedings in limited circumstances, including where nec-
essary for the respondent to be eligible to seek immigration relief
before USCIS).
Also, Patel cannot establish the substantial prejudice neces-
sary to sustain a due process claim because she cannot show the
outcome of her removal proceedings would have been different
absent any error. See Lapaix v. U.S. Att’y Gen., 605 F.3d 1138, 1143
(11th Cir. 2010) (explaining to establish a violation of her Fifth
Amendment right to due process, a petitioner must show “she was
deprived of liberty without due process of law and that the pur-
ported errors caused her substantial prejudice,” and “[t]o show sub-
stantial prejudice, an alien must demonstrate that, in the absence
of the alleged violations, the outcome of the proceeding would
have been different”). All the evidence put forth in support of her
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25-13936 Opinion of the Court 5
motion related to her personal circumstances, and even if the BIA
had engaged with that evidence, the outcome would have been the
same due to the untimely filing of her motion and the lack of evi-
dence relating to changes in India. See id.; 8 U.S.C.
§ 1229a(c)(7)(C)(ii).
B. Sua Sponte Reopening
The BIA has the discretion to “at any time reopen or recon-
sider on its own motion any case in which it has rendered a deci-
sion.” 8 C.F.R. § 1003.2(a); Kucana v. Holder, 558 U.S. 233, 250
(2010). We have explained we lack jurisdiction to review the BIA’s
decision to reopen sua sponte because the BIA’s decision is “com-
mitted 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 & n.7 (11th Cir. 2008). However, we have
stated that we may retain jurisdiction concerning constitutional
claims based on the BIA’s decision denying a motion to reopen pro-
ceedings sua sponte. Bing Quan Lin v. U.S. Att’y Gen., 881 F.3d
860, 871 (11th Cir. 2018), overruled in part on other grounds by, Santos-
Zacaria v. Garland, 598 U.S. 411, 419 (2023).
We lack jurisdiction to review the BIA’s decision not to ex-
ercise its sua sponte authority to reopen Patel’s case. See Lenis, 525
F.3d at 1294 & n.7. To the extent we may retain jurisdiction over
a constitutional claim challenging the BIA’s refusal to reopen sua
sponte, Bing Quan Lin, 881 F.3d at 871, Patel’s due process claim for
sua sponte reopening fails for the same reason as her due process
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6 Opinion of the Court 25-13936
claim fails for the denial of her motion to reopen. See Lapaix, 605
F.3d at 1143.
II. CONCLUSION
The Government is clearly right as a matter of law and there
can be no substantial question as to the outcome that the BIA did
not abuse its discretion in denying Patel’s motion to reopen. Groen-
dyke Transp., Inc. v. Davis, 406 F.2d 1158, 1162 (5th Cir. 1969) 1 (ex-
plaining summary disposition is appropriate where “the position of
one of the parties is clearly right as a matter of law so that there can
be no substantial question as to the outcome of the case”). Patel
filed her motion to reopen well after the 90-day statutory deadline
and has not demonstrated that she qualified for an exception to that
deadline or that the denial was arbitrary or capricious, and we lack
jurisdiction over the BIA’s refusal to reopen her removal proceed-
ings sua sponte. Accordingly, we GRANT the Government’s mo-
tion to deny in part and dismiss in part Patel’s petition for review.
The Government’s motion to stay the briefing schedule is
DENIED as moot.
PETITION DENIED IN PART, DISMISSED IN PART.
1 In Bonner v. City of Prichard, 661 F.2d 1206, 1209 (11th Cir. 1981) (en banc),
this Court adopted as binding precedent all decisions of the former Fifth Cir-
cuit handed down prior to close of business on September 30, 1981.