Edina and Redzo Hodzic, Bosnian Muslims from the Sandzak region of Serbia, entered the United States in June 2000 using forged Slovenian passports. They claimed fear of persecution due to their religion and ethnicity following the NATO bombing of Serbia in 1999. They were placed in removal proceedings for fraudulently misrepresenting facts to gain admission. After an initial asylum claim was denied and their appeal dismissed, they filed a motion to reopen based on an approved employment visa, which was denied as untimely. Years later, in 2020 and 2021, they filed motions to reopen sua sponte, arguing that the Supreme Court's decision in Niz-Chavez v. Garland created a fundamental change in case law that made them eligible for cancellation of removal due to the defective notices to appear they received in 2000. They also cited their daughter's severe medical condition and their own health issues as grounds for exceptional hardship. The BIA denied these motions in 2024, finding the Hodzics did not present an 'exceptional situation' warranting reopening, and the Hodzics sought review in the First Circuit.
Chief Judge Gelpí, writing for the panel, first addressed the jurisdictional threshold. The court explained that while it generally lacks jurisdiction to review the BIA's discretionary denial of a sua sponte motion to reopen, it retains limited jurisdiction to correct legal or constitutional errors. The Hodzics argued four points of legal error and two constitutional claims. Regarding the legal errors, the court rejected the argument that the BIA must apply the statutory definition of 'exceptional circumstances' from 8 U.S.C. § 1229a(e)(1) to sua sponte motions. The court clarified that this statutory definition applies only to motions to rescind removal orders for failure to appear, not to the discretionary 'exceptional situations' standard used in sua sponte cases. The court also found the 'arbitrary and capricious' claim meritless, noting that no precedent requires the BIA to provide a detailed explanation for denying a sua sponte motion. On the 'fundamental change in case law' argument, the court held that while Niz-Chavez may constitute an exceptional situation, it does not compel the BIA to reopen proceedings; the BIA retains the discretion to deny the motion even if a change in law is present. The court further dismissed the reliance on Loper Bright v. Raimondo, stating that the case did not involve statutory interpretation requiring de novo review, but rather the exercise of discretionary authority. Regarding constitutional claims, the court ruled that the BIA's exercise of sua sponte authority does not create a cognizable liberty interest, defeating the procedural due process claim. The substantive due process claim regarding family integrity was waived because the Hodzics failed to develop the argument in their brief.
The Hodzics' petitions for review are denied, leaving the BIA's denial of their motions to reopen in place. The decision reinforces that the BIA has broad discretion to deny sua sponte reopenings and that petitioners must raise specific, colorable legal or constitutional errors to trigger appellate review. It clarifies that the Niz-Chavez decision does not automatically entitle noncitizens to reopen proceedings, and that the 'exceptional situations' standard for discretionary reopening is distinct from the statutory 'exceptional circumstances' definition used in other contexts.
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