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[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
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No. 19-12607
Non-Argument Calendar
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Agency No. A088-898-112
MARCO PLAZA-HERNANDEZ,
Petitioner,
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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(March 9, 2020)
Before WILSON, JORDAN, and ANDERSON, Circuit Judges.
PER CURIAM:
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Marco Plaza-Hernandez seeks review of the final order of the Board of
Immigration Appeals (“BIA”) affirming the Immigration Judge’s (“IJ”) denial of
his motion to sua sponte reopen his removal proceedings. On appeal, he argues
that the BIA failed to consider the facts surrounding his failure to appear at his
initial hearing, misconstrued the circumstances that made him eligible for a new
type of relief from removal, and misapplied its precedent regarding what
constitutes extraordinary circumstances warranting reopening. The government
responds that we lack jurisdiction to review the BIA’s refusal to exercise its
authority to sua sponte reopen removal proceedings. Plaza-Hernandez replies that
(1) we have jurisdiction under the Administrative Procedures Act (“APA”) to set
aside arbitrary and capricious agency decisions and (2) he was denied due process
because of the BIA’s misapplication of its precedent.
We review our subject-matter jurisdiction de novo. Amaya-Artunduaga v.
U.S. Att’y Gen.,
463 F.3d 1247, 1250 (11th Cir. 2006). Pursuant to § 242(a)(1) of
the Immigration and Nationality Act (“INA”), we may review final orders of
removal. INA § 242(a)(1), 8 U.S.C. § 1252(a)(1). However, this section does not
apply to decisions committed by statute to the discretion of the Attorney General or
Secretary of Homeland Security. INA § 242(a)(2)(B), 8 U.S.C. § 1252(a)(2)(B).
Similarly, though ordinarily the APA provides that a reviewing court may set aside
agency actions that are arbitrary or capricious, this judicial-review provision does
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not apply where an agency’s action is committed to its discretion by law. 5 U.S.C.
§§ 701(a)(2), 706(2)(A).
We lack jurisdiction to review the BIA’s refusal to exercise its authority to
sua sponte reopen proceedings because it is committed to the BIA’s discretion by
law. Lenis v. U.S. Att’y Gen.,
525 F.3d 1291, 1293–94 (11th Cir. 2008) (discussing
§ 701(a)(2)); 8 C.F.R. § 1003.2(a). We have suggested that we may have
jurisdiction to consider constitutional claims relating to the BIA’s refusal to
exercise its discretionary authority to sua sponte reopen proceedings,
Lenis, 525
F.3d at 1294 n.7, but our jurisdiction does not extend to our review of solely legal
claims, Butka v. U.S. Att’y Gen.,
827 F.3d 1278, 1285–86 (11th Cir. 2016).
We lack jurisdiction to consider claims that were not raised before the BIA.
Amaya-Artunduaga, 463 F.3d at 1250. A due process claim that a petitioner was
denied a full and a fair hearing “is precisely the kind of procedural error which
requires exhaustion.”
Id. at 1251. And a petitioner abandons an argument where
he raises it for the first time in his reply brief. See Al Najjar v. Ashcroft,
257 F.3d
1262, 1282 n.12 (11th Cir. 2001).
Accordingly, we conclude that we lack jurisdiction to review the BIA’s
refusal to exercise its sua sponte authority to reopen Plaza-Hernandez’s
proceedings. Although he argues that the APA allows us to set aside an arbitrary
and capricious decision, our precedent provides that the authority to sua sponte
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reopen proceedings is committed to the BIA’s discretion by law, so the APA does
not provide us with jurisdiction to review that decision. Although
Plaza-Hernandez also argues that he was denied due process, (1) we lack
jurisdiction to consider that claim because he did not raise it before the BIA,
Amaya-Artunduaga, 463 F.3d at 1250–51; and (2) he abandoned that claim by
failing to raise it in his initial brief, see Al
Najjar, 257 F.3d at 1282 n.12. To the
extent that he argues that the BIA made legal errors in misapplying its precedent,
we lack jurisdiction to address that claim because it is not a constitutional claim.
Accordingly, we dismiss his petition for lack of jurisdiction.
DISMISSED.
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