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[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
________________________
No. 18-11099
Non-Argument Calendar
________________________
Agency No. A205-131-502
ALFREDO MARQUEZ-MARTINEZ,
a.k.a. Alfredomartinez Marquez,
a.k.a. Alfredo Marquez-Marquez,
a.k.a. Jesus Ochoa-Valenzuela,
a.k.a. Alfredo Martinez Marquez,
Petitioner,
versus
U.S. ATTORNEY GENERAL,
Respondent.
________________________
Petition for Review of a Decision of the
Board of Immigration Appeals
________________________
(October 17, 2018)
Before MARCUS, NEWSOM, and HULL, Circuit Judges.
PER CURIAM:
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Alfredo Marquez-Martinez seeks review of the Board of Immigration
Appeals’s final order affirming the Immigration Judge’s denial of his motion to
reopen his removal proceedings. On appeal, Marquez-Martinez argues that it was
an abuse of discretion for the IJ and BIA to deny his motion based on (1) his
“delay” in filing the (nevertheless timely) motion and (2) his prior attempts to
apply for cancellation of removal based on relationships with two other
individuals, even though the IJ specifically stated that he did not question the
legitimacy of Marquez-Martinez’s current marriage. Marquez-Martinez separately
contends that the BIA failed to give reasoned consideration to his arguments
because it failed to explain why either of the two proffered reasons should be held
against him. The Government argues in response that we lack subject matter
jurisdiction because the IJ denied the motion to reopen under its sua sponte
authority and, alternatively, that the denial of Marquez-Martinez’s motion to
reopen was not an abuse of discretion.
I
We address first our subject matter jurisdiction over Marquez-Martinez’s
appeal. We review de novo whether we have subject matter jurisdiction. Amaya-
Artunduaga v. U.S. Att’y Gen.,
463 F.3d 1247, 1250 (11th Cir. 2006).
Under the Immigration and Nationality Act, this Court may review final
orders of removal. INA § 242(a)(1), 8 U.S.C. § 1252(a)(1). This jurisdictional
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grant includes the authority to review orders denying motions to reopen. See Patel
v. U.S. Att’y Gen.,
334 F.3d 1259, 1261 (11th Cir. 2003). In Lenis v. United States
Attorney General, however, this Court explained that “under the Administrative
Procedure Act, judicial review is not available when ‘agency action is committed
to agency discretion by law.’”
525 F.3d 1291, 1294 (11th Cir. 2008) (emphasis
added) (quoting 5 U.S.C. § 701(a)(2)). The Lenis Court concluded that it lacked
jurisdiction to review the BIA’s refusal to reopen immigration proceedings in
exercise of its sua sponte authority, because the INA did not provide any “standard
to govern the BIA’s exercise of its discretion” to sua sponte reopen immigration
proceedings.
Id. at 1293; see also Butka v. U.S. Att’y Gen.,
827 F.3d 1278, 1283–
84 (11th Cir. 2016), cert. denied sub nom. Butka v. Sessions,
138 S. Ct. 299 (2017).
But the Supreme Court has explained that this discretionary bar does not
apply to IJ and BIA decisions reviewing statutory (as opposed to sua sponte)
motions to reopen. Mata v. Lynch,
135 S. Ct. 2150, 2154 (2015) (citing Kucana v.
Holder,
558 U.S. 233, 253 (2010)). Under the INA, an alien may file one
“statutory” motion to reopen his removal proceedings, which must (1) state the
new facts that will be proven at a hearing if the motion is granted and (2) be
supported by affidavits or other evidence. INA § 240(c)(7)(A)–(B), 8 U.S.C.
§ 1229a(c)(7)(A)–(B). A statutory motion to reopen also must be filed within 90
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days of a final order of removal. INA § 240(c)(7)(C)(i), 8 U.S.C.
§ 1229a(c)(7)(C)(i).
It is unclear from the face of Marquez-Martinez’s motion whether it is a
statutory motion to reopen or a motion for discretionary sua sponte reopening. The
Government contends that we do not have subject matter jurisdiction because the
IJ denied Marquez-Martinez’s motion to reopen “solely in the exercise of
discretion,” and thus we should treat the motion as a request for the IJ to exercise
his sua sponte authority to reopen. But Marquez-Martinez’s motion complies with
the requirements for a statutory motion to reopen—specifically, it states the new
facts to be proven (his marriage to his current wife, Joanna Garcia) and is
supported by evidentiary material. See INA § 240(c)(7)(B), 8 U.S.C.
§ 1229a(c)(7)(B). The motion was also timely filed on July 21, 2015—within 90
days of the May 27, 2015 order granting voluntary departure. See INA
§ 240(c)(7)(C)(i), 8 U.S.C. § 1229a(c)(7)(C)(i).
Because Marquez-Martinez’s motion complies with the statutory
requirements, we construe it as a statutory motion to reopen rather than a motion
for sua sponte reopening. See
Mata, 135 S. Ct. at 2154–56 (construing an alien’s
motion to reopen—which met each requirement of a statutory motion per
INA § 240(c)(7)(b)—as a statutory motion to reopen rather than as a request for
the Court to exercise its sua sponte authority). Of course, the IJ and BIA may still
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choose to deny a statutory motion to reopen even when an alien has made out a
prima facie case of entitlement to relief. Bing Quan Lin v. U.S. Att’y Gen.,
881
F.3d 860, 873 (11th Cir. 2018). But this does not divest us of jurisdiction to review
the denial of Marquez-Martinez’s motion. See
Mata, 135 S. Ct. at 2154 (noting
that, when courts of appeal review a BIA denial of a statutory motion to reopen,
“the reason for the BIA’s denial makes no difference to the jurisdictional issue”);
see also
Kucana, 558 U.S. at 244. Therefore, we have jurisdiction over this appeal.
II
We next address whether it was an abuse of discretion for the IJ and BIA to
cite only Marquez-Martinez’s delay in filing his (still timely) motion to reopen and
his two prior relationships as support for denying his motion. See Contreras-
Rodriguez v. U.S. Att’y Gen.,
462 F.3d 1314, 1316 (11th Cir. 2006) (“We review the
denial of a motion to reopen for abuse of discretion.”). In so doing, we review the
BIA’s decision, except to the extent the BIA expressly adopts the IJ’s decision—in
which case we also review the IJ’s decision.
Id.
When reviewing an agency decision for abuse of discretion, we evaluate
whether the agency’s exercise of its discretion was arbitrary or capricious. Abdi v.
U.S. Att’y Gen.,
430 F.3d 1148, 1149 (11th Cir. 2005), overruled on other grounds
by Avila-Santoyo v. U.S. Att’y Gen.,
713 F.3d 1357 (11th Cir. 2013). The arbitrary-
and-capricious standard is “exceedingly deferential”—we are not authorized to
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substitute our judgment for an agency’s so long as its conclusions are rational.
Miccosukee Tribe of Indians v. United States,
566 F.3d 1257, 1264 (11th Cir. 2009)
(citations omitted). That being said, we may nonetheless find an agency action
arbitrary and capricious where an agency has “relied on factors which Congress
has not intended it to consider, entirely failed to consider an important aspect of the
problem, offered an explanation for its decision that runs counter to the evidence
before the agency, or is so implausible that it could not be ascribed to a difference
in view or the product of agency expertise.”
Id. (citing Ala.–Tombigbee Rivers
Coal. v. Kempthorne,
477 F.3d 1250, 1254 (11th Cir. 2007)).
Here, Marquez-Martinez has demonstrated that the denial of his motion to
reopen was arbitrary and capricious. As indicated by the BIA, the IJ’s decision
rested solely on two “negative” grounds: (1) Marquez-Martinez’s delay in filing
the motion to reopen and (2) Marquez-Martinez’s prior relationships. Neither the
IJ nor the BIA, however, provided any reason why these factors counted against
Marquez-Martinez—indeed, the IJ explicitly discounted the only reason for which
either factor could support a denial of Marquez-Martinez’s motion.
First, neither the IJ nor BIA explained how Marquez-Martinez’s “delay” in
filing is a negative factor when both acknowledged that the motion was still, in
fact, timely filed. See generally
Mata, 135 S. Ct. at 2150 (recognizing that the BIA
may deny a statutory motion to reopen for untimeliness). Although the IJ
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determined that Marquez-Martinez “could have” filed his motion sooner, neither
the IJ nor the BIA addressed the facts that the motion had to be filed in person in
Atlanta, that the law required Marquez-Martinez to gather evidence to support his
motion, or (most significantly) that the motion was timely filed within six weeks of
his marriage. Nor did the IJ or BIA provide support for the premise that a timely-
but-not-timely-enough motion is a relevant factor in evaluating an alien’s statutory
motion to reopen. Under these circumstances, it is unclear why any supposed
delay in filing should be held against Marquez-Martinez.
Second, the IJ’s and BIA’s discussions of Marquez-Martinez’s prior
relationships do not illuminate why they constitute a “negative” factor. Certainly,
there are circumstances in which prior relationships would be relevant—indeed,
circumstances such as those in this case could give rise to questions about a
marriage’s legitimacy. Guzman-Munoz v. U.S. Att’y Gen.,
733 F.3d 1311, 1312–13
(11th Cir. 2013) (recognizing that the BIA may deny a motion to reopen based on a
finding that a petitioner’s marriage is not bona fide). The IJ could have reasoned,
for example, that Marquez-Martinez’s current marriage was likely illegitimate in
light of his earlier attempts to remain in the United States based on prior
relationships. But that is not what the IJ concluded. Instead, the IJ expressly
stated that he did not question the legitimacy of Marquez-Martinez’s current
marriage—but then counted Marquez-Martinez’s prior relationships against him
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anyway. Absent further explanation, it is unclear why the prior relationships
constituted a relevant negative factor in considering whether to grant the motion.
In sum, the BIA and IJ did not explain why the still-timely filing or prior
relationships were relevant factors in their decisions on Marquez-Martinez’s
motion, did not address Marquez-Martinez’s arguments about the reasons for his
delay or any of his proffered “positive” factors, and specifically disavowed the
only obvious reason that his prior relationships would have been relevant. While
our review of agency discretion is “exceedingly deferential,” it is not a rubber
stamp. Miccosukee
Tribe, 566 F.3d at 1264. Accordingly, we hold that the IJ and
BIA’s denial of Marquez-Martinez’s motion to reopen was arbitrary and capricious
as it was based on irrelevant factors. 1 See
id. (citing Kempthorne, 477 F.3d at
1254).
III
Finally, we address whether the BIA failed to give reasoned consideration to
Marquez-Martinez’s arguments. We review de novo whether an agency failed to
give an issue reasoned consideration. Jeune v. U.S. Att’y Gen.,
810 F.3d 792, 799
(11th Cir. 2016).
1
We decline to address the Government’s argument regarding the weight of the “finality
interest” because that factor was not part of either the IJ’s or the BIA’s decision. We also
decline to address the Government’s contention that the IJ improperly extended the time for
voluntary departure as the Government did not make this argument to either the IJ or the BIA.
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To determine whether an agency gave reasoned consideration, we examine
whether it “consider[ed] the issues raised and announce[d] its decision in terms
sufficient to enable a reviewing court to perceive that it has heard and thought and
not merely reacted.” Seck v. U.S. Att’y Gen.,
663 F.3d 1356, 1364 (11th Cir. 2011)
(citation omitted). The agency need not specifically address each claim made or
each piece of evidence presented, but it must consider all evidence that a petitioner
has submitted.
Id. An agency fails to give reasoned consideration “when it
misstates the contents of the record, fails to adequately explain its rejection of
logical conclusions, or provides justifications for its decision which are
unreasonable and which do not respond to any arguments in the record.”
Jeune,
810 F.3d at 803.
Here, the BIA failed to give reasoned consideration to Marquez-Martinez’s
argument. Marquez-Martinez contended that the IJ’s decision to deny the motion
to reopen was unsupported because it relied on irrelevant factors, and he explained
why those factors appeared to be irrelevant. In response, the BIA merely stated
that the IJ “provide[d] reasons,” named the two reasons, and then stated that the IJ
“properly weighed the positive and negative discretionary factors in this case.”
Although the BIA is not required to address every argument a petitioner makes, its
failure to explain—at all—its rejection of Marquez-Martinez’s arguments
demonstrates that it did not give his claims reasoned consideration.
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IV
Because it was an abuse of discretion for the IJ and BIA to rely on irrelevant,
unexplained factors in considering Marquez-Martinez’s statutory motion to reopen,
and because the BIA did not give reasoned consideration to his claims, we GRANT
Marquez-Martinez’s petition, VACATE the BIA decision, and REMAND for
further proceedings consistent with this opinion.
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