Page:Reyes Mata v. Lynch.pdf/7

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court under Kucana. The Board did so for timeliness reasons, holding that Mata had fled his motion after 90 days had elapsed and that he was not entitled to equitable tolling. But as just explained, the reason the Board gave makes no difference: Whenever the Board denies an alien's statutory motion to reopen a removal case, courts have jurisdiction to review its decision. In addition, the Board determined not to exercise its sua sponte authority to reopen. But once again, that extra ruling does not matter. The Court of Appeals did not lose jurisdiction over the Board's denial of Mata's motion just because the Board also declined to reopen his case sua sponte.

Nonetheless, the Fifth Circuit dismissed Mata's appeal for lack of jurisdiction. That decision, as described earlier, hinged on “constru[ing]” Mata's motion as something it was not: “an invitation for the BIA to exercise” its sua sponte authority. 558 Fed. Appx., at 367; supra, at 146. Amicus's defense of that approach centrally relies on a merits-based premise: that the INA forbids equitable tolling of the 90-day fling period in any case, no matter how exceptional the circumstances. See Brief for Amicus Curiae by Invitation of the Court 14–35. Given that is so, amicus continues, the court acted permissibly in “recharacteriz[ing]” Mata's pleadings. Id., at 36. After all, courts often treat a request for “categorically unavailable” relief as instead “seeking relief [that] may be available.” Id., at 35, 38. And here (amicus concludes) that meant construing Mata's request for equitable tolling as a request for sua sponte reopeningeven though that caused the Fifth Circuit to lose its jurisdiction.

But that conclusion is wrong even on the assumptionand it is only an assumption—that its core premise about equitable tolling is true. If the INA precludes Mata from getting