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[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
________________________
No. 20-13389
Non-Argument Calendar
________________________
Agency No. A201-341-454
RENE ASTUL LOPEZ-PORTILLO,
Petitioner,
versus
U.S. ATTORNEY GENERAL,
Respondent.
________________________
Petition for Review of a Decision of the
Board of Immigration Appeals
________________________
(May 6, 2021)
Before WILSON, JILL PRYOR, and LUCK, Circuit Judges.
PER CURIAM:
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Rene Lopez-Portillo petitions for review of an August 2020 Board of
Immigration Appeals (BIA) order. In that order, the BIA denied his motions to
reconsider, reopen, and sua sponte reopen a March 2020 BIA decision denying
cancellation of removal pursuant to the Immigration and Nationality Act (INA) §
240A(b)(1), 8 U.S.C. § 1229b(b)(1). Lopez-Portillo argues that the BIA applied the
wrong legal standards in denying him relief, engaged in impermissible factfinding,
erred in deciding not to sua sponte reopen his case, denied him due process, and
did not give his arguments or evidence reasoned consideration.
The INA limits our review of the petition. See INA § 242(a)(2)(B)(i),
8
U.S.C. § 1252(a)(2)(B)(i); INA § 242(a)(2)(D),
8 U.S.C. § 1252(a)(2)(D). In part,
Lopez-Portillo’s petition directly challenges the March 2020 order or otherwise
implicates the discretionary-review bar, so we dismiss his petition to that extent.
While Lopez-Portillo also raises legal and constitutional claims—which we can
review—those claims do not have merit, so we otherwise deny the petition.
I.
In May 2019, the Department of Homeland Security (DHS) served Lopez-
Portillo, who is a native and citizen of El Salvador, with a notice to appear. DHS
alleged that he had entered the United States without being admitted or paroled and
charged him as removable pursuant to INA § 212(a)(6)(A)(i),
8 U.S.C. §
1182(a)(6)(A)(i). Lopez-Portillo conceded removability and applied for
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cancellation of removal. 1 In relevant part, he stated in his application that his
removal would cause a substantial hardship to his children, who are U.S. citizens.
At his hearing, Lopez-Portillo testified to the following: He has been in the
United States since 2005 and is his family’s sole breadwinner. His nine-year-old
daughter was born with a hip problem that affects her feet and ankles, causes her
pain, and requires her to walk abnormally. His son was diagnosed with eczema at
birth, which requires special care when bathing and the use of medicated soap and
shampoo because his skin itches and bleeds. While Lopez-Portillo was detained,
his son started acting out and his eczema worsened; both children were diagnosed
with adjustment disorders and were struggling. His daughter understands Spanish
and English, but his wife only speaks Spanish and his son does not speak Spanish,
so his daughter often has to translate between them. He does not believe he would
be able to care for his children’s needs if they went with him to El Salvador.
Lopez-Portillo’s sister and friend each testified about how the children had
been affected by his detention and how he was needed at home with them. Lopez-
Portillo presented evidence that women did not have equal pay or equal
1
The Attorney General can cancel the removal of a non-lawful permanent resident who: (1) has
been physically present in the United States for a continuous period of at least ten years
immediately preceding the date of the application; (2) has been a person of good moral character
during that period; (3) has not been convicted of an offense under INA §§ 1182(a)(2),
1227(a)(2), or 1227(a)(3); and (4) establishes that his removal would result in exceptional and
extremely unusual hardship to a qualifying relative, including a U.S. citizen child. INA §
240A(b)(1), 8 U.S.C. § 1229b(b)(1).
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employment opportunities in El Salvador and that the country was dangerous.
Also, he showed there was poor healthcare in El Salvador, particularly in
comparison to the private health insurance he had obtained through his job in the
United States.
In an oral decision, the immigration judge (IJ) granted Lopez’s application
for cancellation of removal. The IJ found substantial hardship based in part on the
son’s medical condition and the fact that the son does not speak the same language
as his mother. Also, because Lopez-Portillo is the sole breadwinner for the family,
his removal could result in the children becoming public charges and facing
exceptional and extremely unusual hardship. Alternatively, the IJ found that, if the
children followed Lopez-Portillo to El Salvador, they would be living in a country
where they would not understand the language, have no ties, and where their
family earnings would be significantly less. Thus, the IJ found that the situation
justified the discretionary relief of cancellation.
DHS appealed to the BIA. Lopez-Portillo opposed the appeal and moved to
admit new evidence, including a letter from the family’s therapist about the son
and mother’s language barrier and a scholarly article about the mental health
effects on immigrant children of having to learn two languages.
In March 2020, the BIA sustained DHS’s appeal and vacated the IJ’s grant
of cancellation. Reviewing the IJ’s factual findings for clear error and all other
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issues de novo, the BIA determined that the “evidence does not establish that [the
family’s] hardship is different from, or beyond, that which would normally be
expected to result” from removal. Accordingly, the hardship did not rise to the
level that warrants cancellation. The BIA ordered Lopez-Portillo removed. Lopez-
Portillo did not petition for review of the March 2020 order.
In April 2020, Lopez-Portillo moved for reconsideration of the March 2020
order and requested a stay of deportation. In May 2020, he moved to reopen his
case based on new and previously unavailable evidence. The new evidence
included that his son had newly been diagnosed with a respiratory disorder,
information about the effect of removal on children’s mental health, evidence of
poor medical care in El Salvador, and more evidence about the language barrier
between his son and his wife. He again requested that the BIA sua sponte reopen
his case.
The BIA denied Lopez-Portillo’s motions and request for a stay in an
August 2020 decision. Lopez-Portillo filed this petition for review.
II.
The INA guides our review. We generally have jurisdiction to review final
orders of removal. See INA § 242(a)(l), (b)(9),
8 U.S.C. § 1252(a)(l), (b)(9);
Jaggernauth v. U.S. Att’y Gen.,
432 F.3d 1346, 1350 (11th Cir. 2005) (per curiam).
A petitioner has 30 days from the date of the final order of removal to file a
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petition for review with us. INA § 242(a)(1), (b)(1);
8 U.S.C. § 1252(a)(1), (b)(1).
An order of removal becomes final when the BIA affirms it or when the time to
appeal it expires, whichever is earlier. INA § 101(a)(47)(B),
8 U.S.C.
§ 1101(a)(47)(B). The 30-day deadline to file a petition for review is mandatory,
jurisdictional, and not subject to equitable tolling. Dakane v. U.S. Att’y Gen.,
399
F.3d 1269, 1272 n.3 (11th Cir. 2005) (per curiam). The deadline is not tolled by the
filing of a motion to reopen or reconsider.
Id.
However, the INA strips us of jurisdiction to review discretionary judgments
regarding petitions for cancellation of removal. INA § 242(a)(2)(B)(i),
8 U.S.C.
§ 1252(a)(2)(B)(i). In these cases, we only have jurisdiction to review
“constitutional claims or questions of law.” INA § 242(a)(2)(D),
8 U.S.C.
§ 1252(a)(2)(D). Such a claim must be colorable; “a party may not dress up a claim
with legal or constitutional clothing to invoke our jurisdiction.” Patel v. U.S. Att’y
Gen.,
971 F.3d 1258, 1272 (11th Cir. 2020) (en banc). In Patel, we established
“that we are precluded from reviewing any judgment regarding the granting of
relief under [8 U.S.C §§] 1182(h), 1182(i), 1229b, 1229c, or 1255 except to the
extent that such review involves constitutional claims or questions of law.” Id. at
1262 (alteration in original) (quotation marks omitted).
When a motion to reopen implicates the denial of discretionary relief as to
the underlying order, the jurisdictional bar from the INA applies and we cannot
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review the denial of the motion to reopen. Guzman-Munoz v. U.S. Att’y Gen.,
733
F.3d 1311, 1314 (11th Cir. 2013) (per curiam). Similarly, if a petitioner did not
raise any questions of law or constitutional issues, we lack jurisdiction to review
BIA orders denying a motion to reconsider. Butalova v. U.S. Att’y Gen.,
768 F.3d
1179, 1184–85 (11th Cir. 2014) (per curiam).
While the BIA “may at any time reopen or reconsider a case in which it has
rendered a decision on its own motion,”
8 C.F.R. § 1003.2(a), the decision to
refuse to reopen removal proceedings sua sponte is “committed to agency
discretion by law.” Lenis v. U.S. Att’y Gen.,
525 F.3d 1291, 1293–94 (11th Cir.
2008). Accordingly, such decisions are not reviewable.
As an initial matter, we must decide the extent of our jurisdiction over
Lopez-Portillo’s petition. He did not timely petition for review of the March 2020
order, so we cannot review that order. See INA § 242(a)(1), (b)(1);
8 U.S.C.
§ 1252(a)(1), (b)(1). As for the August 2020 order, because it involves challenges
to the denial of the discretionary relief of cancellation of removal, we may only
review Lopez-Portillo’s claims to the extent he has raised a colorable legal or
constitutional claim. See Patel, 971 F.3d at 1272.2 We similarly lack jurisdiction
2
Lopez-Portillo attempts to raise a due process claim but the claim is not colorable. Failing “to
receive relief that is purely discretionary in nature does not amount to a deprivation of a liberty
interest.” Alhuay v. U.S. Att’y Gen.,
661 F.3d 534, 548 (11th Cir. 2011) (per curiam); see also
Scheerer v. U.S. Att’y Gen.,
513 F.3d 1244, 1253 (11th Cir. 2008) (the denial of a motion to
reconsider and motion to reopen are discretionary decisions that cannot support a due process
claim). Accordingly, this claim fails.
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over the BIA’s decision not to sua sponte reopen his case. Thus, we dismiss Lopez-
Portillo’s claims over which we lack jurisdiction.
III.
Nevertheless, Lopez-Portillo raised two claims that we may review:
(1) whether the BIA applied incorrect legal standards in its decision to deny his
motions and (2) whether the BIA failed to give reasoned consideration to his
arguments and evidence. These are both questions of law. Jeune v. U.S. Att’y.
Gen.,
810 F.3d 792, 799 (11th Cir. 2016); Bing Quan Lin v. U.S. Att’y Gen.,
881
F.3d 860, 872 (11th Cir. 2018). Our review is limited to these arguments; we
cannot review the underlying merits of whether Lopez-Portillo’s motions should
have been granted.
One may file a motion to reconsider the prior decision or to reopen
proceedings after entry of a final order of removal. INA § 240(c)(6), (7), 8 U.S.C.
§ 1229a(c)(6), (7). The BIA will typically not grant a motion to reconsider based
on a legal argument that was previously available, but reconsideration may be
warranted based on a previously-raised argument that the BIA did not address in its
prior decision. In re O-S-G-,
24 I. & N. Dec. 56, 58 (BIA 2006).
A “motion to reopen shall state the new facts that will be proven at a hearing
to be held if the motion is granted, and shall be supported by affidavits or other
evidentiary material.” INA § 240(c)(7)(B); 8 U.S.C. § 1229a(c)(7)(B). Reopening
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“may be warranted only where the movant presents evidence that is new, material,
and unavailable when the removal order was entered.” Lin, 881 F.3d at 872
(emphasis omitted). The movant “bears a heavy burden” in showing the evidence
is material and must show that “the new evidence would likely change the result.”
Jiang v. U.S. Att’y Gen.,
568 F.3d 1252, 1256–57 (11th Cir. 2009).
When reviewing an IJ’s decision, the BIA cannot engage in factfinding; it
reviews an IJ’s findings of fact only for clear error.
8 C.F.R. § 1003.1(d)(3)(i). But
the BIA reviews “questions of law, discretion, and judgment and all other issues”
de novo.
Id. § 1003.1(d)(3)(ii). Accordingly, the BIA can consider de novo
whether the IJ’s facts qualify the petitioner for relief. Zhou Hua Zhu v. U.S. Att’y
Gen.,
703 F.3d 1303, 1312 (11th Cir. 2013).
In reviewing a petitioner’s appeal, the BIA must give reasoned consideration
to the arguments and evidence, but need not individually address each argument or
piece of evidence. Perez-Guerrero v. U.S. Att’y Gen.,
717 F.3d 1224, 1232 (11th
Cir. 2013) (per curiam). When reviewing for reasoned consideration, “we inquire
only whether the [BIA] considered the issues raised and announced its decision in
terms sufficient to enable a reviewing court to” know they were considered.
Id.
(quotation marks omitted) (alterations adopted). To meet this burden, the BIA must
discuss “highly relevant” evidence. Ali v. U.S. Att’y Gen.,
931 F.3d 1327, 1334
(11th Cir. 2019). The BIA fails to give reasoned consideration when it “misstates
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the contents of the record, fails to adequately explain its rejection of logical
conclusions, or provides justifications for its decision which are unreasonable.”
Lin, 881 F.3d at 874.
The BIA did not err here. First, in its August 2020 order, the BIA cited and
applied the correct standards of review for analyzing motions to reconsider and
reopen. The BIA did not engage in impermissible factfinding in the August 2020
order because it discussed the facts as found by the IJ and why those facts
collectively were not enough to warrant relief. The BIA did not make any further
factual findings itself. In doing so, the BIA properly recognized its ability to de
novo determine whether the IJ’s facts satisfy the legal standard. Whether the BIA
engaged in improper factfinding in its March 2020 order is not reviewable here
because Lopez-Portillo did not appeal that order.
As for the evidence Lopez-Portillo provided with the motions, the BIA
properly recognized that some of the “new” evidence was not new (it was already
in the record). Otherwise, Lopez-Portillo failed to explain why the evidence was
new or previously unavailable, so the BIA did not err in finding it was not required
to consider it. See Lin, 881 F.3d at 873. As for the new medical evidence, the BIA
considered it, but found it insufficient to justify reopening the case. We lack
jurisdiction to review the underlying merits of that conclusion because it implicates
discretionary relief. See Butalova, 768 F.3d at 1184.
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Second, the BIA gave reasoned consideration to Lopez-Portillo’s arguments.
The BIA was not required to individually mention each argument or piece of
evidence submitted. The decision shows that the BIA considered his claims: it
cited precedential decisions, demonstrated familiarity with the record, and
compared the facts of other cases to the facts of Lopez-Portillo’s case to reach its
conclusions. The BIA properly recognized that Lopez-Portillo raised the same
arguments in the motion to reconsider that he had already raised in his appellate
brief; it was not required to grant his motion when he failed to raise a new
argument. The BIA addressed and rejected Lopez-Portillo’s new arguments,
including whether they had engaged in impermissible factfinding. The BIA also
considered his new evidence, finding that some of it was not new and the rest was
insufficient to change their determination. The BIA did not mischaracterize his
arguments, misapply precedent, or fail to adequately explain the decision.
To the extent that we can review Lopez-Portillo’s petition, we are unable to
grant relief because the BIA did not err. We therefore deny Lopez-Portillo’s claims
that were not dismissed as jurisdictionally barred.
DISMISSED IN PART AND DENIED IN PART.
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