Case: 19-11679 Date Filed: 03/05/2020 Page: 1 of 4
[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
________________________
No. 19-11679
Non-Argument Calendar
________________________
Agency No. A077-913-899
SONIA MARIBEL VEGA JUAREZ,
Petitioner,
versus
U.S. ATTORNEY GENERAL,
Respondent.
________________________
Petition for Review of a Decision of the
Board of Immigration Appeals
________________________
(March 5, 2020)
Before GRANT, LUCK, and ANDERSON, Circuit Judges.
PER CURIAM:
Case: 19-11679 Date Filed: 03/05/2020 Page: 2 of 4
Sonia Vega Juarez seeks review of the Board of Immigration Appeals’
(“BIA”) order denying her second motion to sua sponte reopen her removal
proceedings. Juarez argues, in part that, under Pereira v. Sessions,
138 S. Ct. 2105
(2018), the Immigration Judge (“IJ”) lacked subject matter jurisdiction over her
removal proceedings because her Notice to Appear (“NTA”) did not designate the
specific time or date of her removal proceedings and, thus, was not a valid
charging document, under INA § 239(a), 8 U.S.C. § 1229(a).1
Both the BIA and the IJ have the authority to reopen removal proceedings or
reconsider earlier decisions at any time pursuant to their sua sponte authority.
8 C.F.R. § 1003.2(a); Lenis v. U.S. Att’y Gen.,
525 F.3d 1291, 1292–93 (11th Cir.
2008). We have held, however, that we lack jurisdiction to review the BIA’s
denial of a motion to reopen based on its sua sponte authority because 8 C.F.R.
§ 1003.2(a) provides no meaningful standard against which to judge the BIA’s
exercise of its discretion.
Lenis, 525 F.3d at 1292–94.
1
Juarez also argues that (1) the government violated her due process rights by not providing
her with a copy of the Administrative Record (“AR”) after she filed her petition for review and
(2) that she is eligible for cancellation of removal and her case should be remanded so she can
apply for cancellation of removal. We need not address the merits of her first argument because
our docket sheet reflects that the government filed the AR with us on May 17, 2019, 3 months
before Juarez filed her appellate brief on August 12, 2019. (See CM/ECF for 11th Cir. 19-11679,
Doc. 5). Accordingly, Juarez had access to the AR. As to the second argument, we lack
jurisdiction to review this argument because she did not raise that claim with the BIA and, thus, it
is unexhausted. See Jeune v. U.S. Att’y Gen.,
810 F.3d 792, 800 (11th Cir. 2016) (holding that the
exhaustion requirement is jurisdictional and precludes review of a claim that was not presented to
the BIA). Accordingly, we dismiss her petition in both respects.
2
Case: 19-11679 Date Filed: 03/05/2020 Page: 3 of 4
We have noted “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,”
Lenis, 525 F.3d at 1294 n.7, but we have not addressed, in a
published opinion, the circumstances in which we retain jurisdiction to review
constitutional claims related to the agency’s sua sponte authority to reopen. We
have similarly noted that we ordinarily lack jurisdiction to review the denial of a
motion to reopen under the agency’s sua sponte power, Butka v. U.S. Att’y Gen.,
827 F.3d 1278, 1283-86 (11th Cir. 2016), cert. denied sub nom. Butka v. Sessions,
138 S. Ct. 299 (2017), but when a petitioner raises “constitutional claims . . .
relating to the BIA’s refusal to reopen sua sponte,” that serves as an exception to
the general rule. Bing Quan Lin v. U.S. Att’y Gen.,
881 F.3d 860, 871 (11th Cir.
2018).
Our review of the record reveals that no constitutional claims are present in
this case. Moreover, Juarez has not alleged that the BIA’s decision constituted a
constitutional violation. See
id. Accordingly, we conclude that the general rule
applies and that we lack jurisdiction to review the denial of Juarez’s second motion
to reopen under the BIA’s sua sponte authority.2 See
Lenis, 525 F.3d at 1292–93.
2
Moreover, even assuming, arguendo, that we had appellate jurisdiction, Juarez’s argument that
the immigration court lacked jurisdiction is foreclosed by Perez-Sanchez v. U.S. Att’y Gen.,
935
F.3d 1148 (11th Cir. 2019), in which we determined that the NTA was deficient under INA
§ 239(a)(1), 8 U.S.C. § 1229(a)(1), for failing to specify the time and date of the removal hearing,
but it did not deprive the agency of jurisdiction over the removal proceedings because the statutory
3
Case: 19-11679 Date Filed: 03/05/2020 Page: 4 of 4
PETITION DENIED IN PART AND DISMISSED IN PART.
“time-and-place requirement,” like 8 C.F.R. § 1003.14, did not “create a jurisdictional rule,” but
was instead a “claim-processing rule.” See
Perez-Sanchez, 935 F.3d at 1154–55.
4
