Case: 18-11911 Date Filed: 12/07/2018 Page: 1 of 3
[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
________________________
No. 18-11911
Non-Argument Calendar
________________________
Agency No. A088-899-126
MIGUEL VELASQUEZ-AGUILAR,
Petitioner,
versus
U.S. ATTORNEY GENERAL,
Respondent.
________________________
Petition for Review of a Decision of the
Board of Immigration Appeals
________________________
(December 7, 2018)
Before WILSON, MARTIN, and NEWSOM, Circuit Judges.
PER CURIAM:
Miguel Velasquez-Aguilar petitions for review of the Board of Immigration
Appeals’ (BIA) order denying his motion to sua sponte reopen its prior order
Case: 18-11911 Date Filed: 12/07/2018 Page: 2 of 3
declining to reinstate the Immigration Judge’s (IJ) grant of voluntary departure
under 8 U.S.C. § 1229c(a)(1). Velasquez-Aguilar argues that the BIA abused its
discretion in refusing to grant his motion because it failed to sufficiently articulate
its reasoning. Because we lack jurisdiction, Velasquez-Aguilar’s petition for
review is dismissed.
We review our own subject matter jurisdiction de novo. Gonzalez-Oropeza
v. U.S. Att’y Gen.,
321 F.3d 1331, 1332 (11th Cir. 2003). The BIA “may at any
time reopen . . . on its own motion any case in which it has rendered a decision,”
but the decision to reopen “is within the discretion” of the BIA, “even if the party
moving has made out a prima facie case for relief.”
8 C.F.R. § 1003.2(a). We lack
jurisdiction to review the BIA’s denial of a motion to reopen pursuant to its sua
sponte authority. Lenis v. U.S. Att’y Gen.,
525 F.3d 1291, 1294 (11th Cir. 2008).
This decision is fully committed to the discretion of the BIA by law.
Id. at 1293–
94. And without a meaningful statutory standard against which we could judge the
BIA’s exercise of that discretion, we lack jurisdiction to review it. Id.; Heckler v.
Chaney,
470 U.S. 821, 830,
105 S. Ct. 1649, 1655 (1985) (“[R]eview is not to be
had if the statute is drawn so that a court would have no meaningful standard
against which to judge the agency’s exercise of discretion.”).1
1
Velasquez-Aguilar argues that we have jurisdiction because the Supreme Court’s decision in
Kucana v. Holder,
558 U.S. 233 (2010), abrogates our reasoning in Lenis. We disagree. First,
The Supreme Court’s decision in Kucana considered only § 1252(a)(2)(B)’s statutory
2
Case: 18-11911 Date Filed: 12/07/2018 Page: 3 of 3
Although we recognized in Lenis the possibility that we might retain
jurisdiction to review constitutional claims directed at the BIA’s exercise of its sua
sponte reopening power, Velasquez-Aguilar has not raised any constitutional
claims. See Lenis,
525 F.3d at 1294 n.7 (“We note, in passing, that an appellate
court may have jurisdiction over constitutional claims related to the BIA's decision
not to exercise its sua sponte power.”). We lack jurisdiction to review
Velasquez-Aguilar’s claims related to the BIA’s denial of his motion to reopen sua
sponte. Accordingly, his petition for review is dismissed.
PETITION DISMISSED.
jurisdictional bar on denials of discretionary relief, and expressly took no opinion on sua sponte
reopening. Kucana,
558 U.S. at 251 n.18. Second, our decision in Lenis is not undercut by
Kucana because, as we held in Lenis, no meaningful standard exists for courts to conduct a
review of the BIA’s sua sponte decisions to reopen. That the standardless discretion to sua
sponte reopen removal proceedings is found in a regulation and not a statute does not change our
analysis. Accord Neves v. Holder,
613 F.3d 30, 35 (1st Cir. 2010); Luna v. Holder,
637 F.3d 85,
96 (2d Cir. 2011); Pllumi v. U.S. Att’y Gen.,
642 F.3d 155, 159 n.6 (3d Cir. 2011); Hernandez-
Castillo v. Sessions,
875 F.3d 199, 206–07 (5th Cir. 2017); Rais v. Holder,
768 F.3d 453, 463–64
(6th Cir. 2014); Anaya-Aguilar v. Holder,
683 F.3d 369, 372–73 (7th Cir. 2012); Ochoa v.
Holder,
604 F.3d 546, 559 n.3 (8th Cir. 2010); Mejia-Hernandez v. Holder,
633 F.3d 818, 823–
24 (9th Cir. 2011).
3
