Typically, a circuit court of appeals does not have jurisdiction to review the Board of Immigration Appeals' (BIA) refusal to exercise its sua sponte authority to reopen a case. However, the Third Circuit has now recognized that at times "the BIA has limited its discretion via a policy, rule, settled course of adjudication, or by some other method, such that the BIA’s discretion can be meaningfully reviewed for abuse. The petitioner’s showing must be persuasive enough to allow the reasonable inference that the BIA’s discretion has in fact been limited." "The key words in the above formulation are 'meaningfully' and 'reasonable.' A policy so broad as to merely redirect the BIA’s discretion, rather than limit it, will probably be insufficient. The same goes for a 'pattern' of dispositions whose contours are not clearly defined or which is not tailored to the petitioner’s circumstances." Published and unpublished BIA decisions can be reviewed when evaluating whether the BIA has created a policy, rule, or settled course of adjudication that limits its discretion. The court, however, disagreed with the petitioner's contention that the BIA has a practice or pattern of reopening cases sua sponte where the petitioner becomes eligible for relief from removal for which he was not eligible in the original removal proceedings.
The full text of Park v. Attorney General can be found here: