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[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
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No. 17-12249
Non-Argument Calendar
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Agency No. A200-849-634
FERNANDA GOMES ARAUJO,
MARCOS ARAUJO,
Petitioners,
versus
U.S. ATTORNEY GENERAL,
Respondent.
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Petition for Review of a Decision of the
Board of Immigration Appeals
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(April 19, 2018)
Before MARCUS, WILSON, and ROSENBAUM, Circuit Judges.
PER CURIAM:
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Pro se petitioners, Marcos Araujo and Fernanda Gomes Araujo (collectively,
the Araujos), seek review of the Board of Immigration Appeals’ (BIA) final order
of removal and the denial of their fourth motion to reopen and reconsider removal
proceedings. The BIA denied the Araujos’ prior three motions, and we dismissed
the petitions for review of those denials for lack of jurisdiction. See Araujo v. U.S.
Att’y Gen. (Araujo I), No. 13-15489, slip op. at 5 (11th Cir. Aug. 19, 2014) (per
curiam); Araujo v. U.S. Att’y Gen. (Araujo II), No. 15-10910, slip op. at 5 (11th
Cir. Sept. 24, 2015) (per curiam); Araujo v. U.S. Att’y Gen. (Araujo III), No.
16-10562, slip op. at 2 (11th Cir. Jan. 9, 2017) (per curiam). In their current
petition for review, the Araujos seem to challenge the BIA’s: (1) order dismissing
their appeal of the final order of removal; (2) subsequent orders denying their
previous motions to reopen and reconsider the removal proceedings; and (3) the
most recent order denying their fourth motion to reopen and reconsider. We
dismiss the petition to the extent that we lack jurisdiction and otherwise deny the
petition.
I.
We review the BIA’s denial of a motion to reconsider for abuse of
discretion. Calle v. U.S. Att’y Gen.,
504 F.3d 1324, 1328 (11th Cir. 2007). We
also review the denial of a motion to reopen for abuse of discretion. Jiang v. U.S.
Att’y Gen.,
568 F.3d 1252, 1256 (11th Cir. 2009). However, we are obligated to
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review the existence of subject matter jurisdiction sua sponte where it may be
lacking. Cadet v. Bulger,
377 F.3d 1173, 1179 (11th Cir. 2004). And such review
is conducted de novo. Gonzalez-Oropeza v. U.S. Att’y Gen.,
321 F.3d 1331, 1332
(11th Cir. 2003) (per curiam). Furthermore, pro se pleadings are held to a less
stringent standard than pleadings drafted by attorneys and will, therefore, be
liberally construed. Hughes v. Lott,
350 F.3d 1157, 1160 (11th Cir. 2003).
II.
First, a “petition for review must be filed not later than 30 days after the date
of the final order of removal.” Immigration and Nationality Act (INA)
§ 242(b)(1), 8 U.S.C., § 1252(b)(1). This statutory time limit “is mandatory and
jurisdictional and not subject to equitable tolling.” Chao Lin v. U.S. Att’y Gen.,
677 F.3d 1043, 1045 (11th Cir. 2012). In that same vein, motions to reopen and
reconsider removal proceedings do not toll the time period to petition for review of
the final removal order. Dakane v. U.S. Atty. Gen.,
399 F.3d 1269, 1272 n.3 (11th
Cir. 2005) (per curiam). Generally, only one motion to reconsider is allowed, and
it must be filed within 30 days of the entry of the removal order. See INA
§ 240(c)(6), 8 U.S.C. § 1229a(c)(6). Similarly, a party may generally only file one
motion to reopen removal proceedings, as long as it is within 90 days of the date of
the entry of the final removal order. INA § 240(c)(7)(A), 8 U.S.C. § 1229a(c)(7).
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Second, a cancellation of removal may be granted if the BIA makes a
discretionary determination that removal would cause “exceptional and extremely
unusual hardship to the [petitioner]’s spouse, parent, or child, who is a citizen of
the United States or [a petitioner] lawfully admitted for permanent residence.”
INA § 240A(b)(1)(D), 8 U.S.C. § 1229b(b)(1)(D). But we have held that
8 U.S.C.
§ 1252(a)(2)(B)(i) precludes appellate review of the BIA’s purely discretionary
determination that a petitioner has failed to satisfy the “exceptional and extremely
unusual hardship” standard for cancellation of removal. Martinez v. U.S. Att’y
Gen.,
446 F.3d 1219, 1221–23 (11th Cir. 2006); Gonzalez-Oropeza,
321 F.3d at
1332–33. We have further held that the jurisdiction-stripping provision
§ 1252(a)(2)(B)(i) likewise bars review of motions to reopen that rest on
discretionary determinations. See Guzman-Munoz v. U.S. Att’y Gen.,
733 F.3d
1311, 1313–14 (11th Cir. 2013) (per curiam).
Moreover, although the BIA may sua sponte reopen removal proceedings at
any time, we do not have jurisdiction to review that decision. Lenis v. U.S. Att’y
Gen.,
525 F.3d 1291, 1294 (11th Cir. 2008). However, while we lack jurisdiction
to review the BIA’s denial of a sua sponte reopening, we do have jurisdiction over
the BIA’s rejection of a motion to reopen removal proceedings as untimely,
numerically barred, or for lacking new and previously unavailable evidence, as
those are nondiscretionary determinations. Mata v. Lynch, 576 U.S. ___, ___,135
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S. Ct. 2150, 2154–55 (2015); Lin v. U.S. Att’y Gen., No. 17-10834, slip op. at 20
(11th Cir. Jan. 31, 2018). As far as new and previously unavailable evidence goes,
the BIA can reject a motion where the petitioner fails to introduce evidence that
was material and previously unavailable when the removal order was entered.
8 C.F.R. § 1003.23(b)(3); Najjar v. Ashcroft,
257 F.3d 1262, 1302 (11th Cir.
2001). But as with any other case, where a petitioner fails to raise an issue on
appeal, the issue is considered abandoned. Sepulveda v. U.S. Att’y Gen.,
401 F.3d
1226, 1228 n.2 (11th Cir. 2005) (per curiam).
Lastly, notwithstanding the jurisdictional bar of § 1252(a)(2)(B)(i), we do
have jurisdiction to review a constitutional claim or question of law raised by a
petitioner. INA § 242(a)(2)(D),
8 U.S.C. § 1252(a)(2)(D). We have noted that we
“may have jurisdiction over constitutional claims related to the BIA’s decision not
to exercise its sua sponte power” to reopen. Lenis,
525 F.3d at 1294 n.7. A
petitioner does not raise a constitutional claim or a question of law when he
challenges the BIA’s affirmance of the determination that he did not establish the
hardship required for cancellation of removal. See Alhuay v. U.S. Att’y Gen.,
661
F.3d 534, 549–50 (11th Cir. 2011) (per curiam). “To establish due process
violations in removal proceedings, [petitioners] must show that they were deprived
of liberty without due process of law, and that the asserted errors caused them
substantial prejudice.” Scheerer v. U.S. Att’y Gen.,
513 F.3d 1244, 1253 (11th Cir.
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2008) (internal quotation marks omitted). “[T]he failure to receive relief that is
purely discretionary in nature,” such as the grant of a motion to reopen, “does not
amount to a deprivation of a liberty interest.”
Id.
III.
As a preliminary matter, the Araujos’ petition does not challenge the BIA’s
determinations that their fourth motion to reopen was time- and number-barred,
and therefore, they have waived review of those issues. See Sepulveda,
401 F.3d at
1228 n.2. Further, to the extent that the Araujos seek review of the BIA’s final
order of removal and its denial of their previous motions to reopen or reconsider
the removal proceedings, we must dismiss. We lack jurisdiction to review the
Araujos’ appeal of the BIA’s final order of removal because they failed to timely
file a petition for review. See Chao Lin,
677 F.3d at 1045. Likewise, we lack
jurisdiction to review the BIA’s denial of the Araujos’ previous motions to reopen
and reconsider because we previously dismissed those petitions for a lack of
jurisdiction and are bound by the law of the case doctrine. Grayson v. Warden,
Comm’r, Alabama DOC,
869 F.3d 1204, 1231 (11th Cir. 2017); Araujo III, slip op.
at 5; Araujo II, slip op. at 5; Araujo I, slip op. at 5.
Furthermore, we not only lack jurisdiction to review the BIA’s decision not
to sua sponte reopen the Arajuos’ case, see Lenis,
525 F.3d at 1294, but also the
BIA’s determination not to cancel removal based on the determination that the
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Araujos had not satisfied the “exceptional and extremely unusual” standard. See
Martinez,
446 F.3d at 1221–23. And because the Araujos do not present any
colorable constitutional claims in their petition for review, as they challenge purely
discretionary decisions which do not amount to deprivations of liberty without due
process of law, we cannot retain jurisdiction. See Alhuay,
661 F.3d at 549–50;
Scheerer,
513 F.3d at 1253; Arias v. U.S. Att’y Gen.,
482 F.3d 1281, 1284 (11th
Cir. 2007) (per curiam).
Further, to the extent that the Araujos argue that they were denied due
process, we deny the petition. While they argue that both the Immigration Judge
and the BIA erred in finding that the evidence that they offered was not new and
previously unavailable evidence, the BIA did not abuse its discretion in
determining that the Araujos failed to provide new evidence to warrant reopening
because the evidence attached to their motion included the BIA’s prior decisions
and the same psychological evaluation they submitted in their initial application for
withholding of removal, which did not constitute new evidence. See Najjar, 257
F.3d at 1302. Accordingly, the Araujos’ petition is dismissed in part to the extent
we lack jurisdiction and is otherwise denied.
PETITION DISMISSED IN PART, DENIED IN PART.
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