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[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
________________________
No. 19-12249
Non-Argument Calendar
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Agency No. A029-389-841
RAUL JESUS ALONSO,
Petitioner,
versus
U.S. ATTORNEY GENERAL,
Respondent.
________________________
Petition for Review of a Decision of the
Board of Immigration Appeals
________________________
(March 26, 2020)
Before ED CARNES, Chief Judge, WILSON, and ANDERSON, Circuit Judges.
PER CURIAM:
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Raul Jesus Alonso, a native and citizen of Cuba, petitions for review of the
Board of Immigration Appeals’ denial of his statutory motion to reopen
proceedings and refusal to exercise its authority to sua sponte reopen proceedings.
I.
In 1991 Alonso entered the United States. His status was adjusted to lawful
permanent resident on November 25, 1992. In 1994 he hit and killed a woman
with his car in Florida while he was under the influence of alcohol. As a result, he
was convicted of “Driving Under the Influence/Manslaughter” under
Fla. Stat.
§ 316.193(3)(c)(3), and he was sentenced to more than one year in prison.
In September 1997, while in prison, he was charged in a Notice to Appear
with being removable under
8 U.S.C. § 1227(a)(2)(A)(iii), for having been
convicted of Driving Under the Influence/Manslaughter, a crime that qualified as
an aggravated felony under the Immigration and Nationality Act because it was a
“crime of violence” under
18 U.S.C. § 16. 1 The Notice to Appear did not have a
1
“The Immigration and Nationality Act (INA) renders deportable any alien convicted of
an ‘aggravated felony’ after entering the United States.
8 U.S.C. § 1227(a)(2)(A)(iii).” Sessions
v. Dimaya,
138 S. Ct. 1204, 1210 (2018). Among other things, “an aggravated felony includes
‘a crime of violence (as defined in section 16 of title 18 ...) for which the term of imprisonment
[is] at least one year.’”
Id. (quoting
8 U.S.C. § 1101(a)(43)(F)). And
18 U.S.C. § 16 defines a
“crime of violence” as either “an offense that has as an element the use, attempted use, or
threatened use of physical force against the person or property of another,”
id. § 16(a) (known as
the elements clause) or “any other offense that is a felony and that, by its nature, involves a
substantial risk that physical force against the person or property of another may be used in the
course of committing the offense,” id. § 16(b) (known as the residual clause).
2
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date or time for the hearing. In October 1997 he received a separate notice
informing him of a November 5, 1997 hearing.
At the November 5 hearing, Alonso denied having received the Notice to
Appear, so the Immigration Judge responded, “[Y]ou now have one in front of
you. Please consider yourself served with it.” The IJ gave him a list of Legal Aid
attorneys and continued the hearing until December 18. Another notice of hearing
was sent on November 12 for the December 18 hearing. At the December hearing,
the IJ found that Alonso was not engaged in diligent efforts to find an attorney and
proceeded with the case. The IJ ordered Alonso removed in December 1997. He
did not appeal that decision.
But Alonso was not removed. He was instead released from prison in 2000
and continued to reside in the United States afterwards. In November 2004 the
Supreme Court held in Leocal v. Ashcroft that “DUI statutes such as Florida’s” are
not crimes of violence under
18 U.S.C. § 16 and therefore are not aggravated
felonies under the INA.
543 U.S. 1, 13 (2004). So, as of November 2004,
Alonso’s conviction was no longer an aggravated felony under the INA, meaning
that the basis for the 1997 removal order was no longer legally correct. In 2005
Alonso was diagnosed with schizophrenia-related disorders.
In July 2018, Alonso, represented by counsel, filed a statutory motion to
reopen and to terminate his removal proceedings. In the alternative, he asked that
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the IJ reopen or reconsider the proceedings sua sponte. He argued that there had
been new factual and legal developments since December 1997. Among other
things, he contended that: (1) the IJ lacked jurisdiction to order him removed under
Pereira v. Sessions,
138 S. Ct. 2105 (2018), because of defects in his Notice to
Appear; and (2) his underlying manslaughter conviction was not a removable
offense under Leocal,
543 U.S. 1, and Sessions v. Dimaya,
138 S. Ct. 1204 (2018)
(holding that residual clause definition of “crime of violence” under
18 U.S.C.
§ 16, as incorporated into the INA, is unconstitutionally vague). He also argued
that the IJ should equitably toll his statutory motion to the extent it was untimely
because he was released from prison in 2000 and had since been diagnosed with
schizophrenia. And he argued that he could not have filed his motions sooner
because the Supreme Court had only recently decided Dimaya and Pereira.
The IJ denied Alonso’s motions. The IJ first noted that his statutory motion
to reopen was untimely by two decades and then declined to equitably toll the
statute of limitations. The IJ found that the law defining aggravated felonies under
the INA changed in 2004 when Leocal was decided, and Alonso offered no
persuasive reason why he did not file a motion to reopen in 2004 or 2005. The IJ
also ruled that Alonso did not establish that his mental illness prevented him from
understanding the 1997 removal proceedings or from filing his motion to reopen
earlier. The IJ also refused to sua sponte reopen the proceedings because Alonso
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did not establish exceptional circumstances. And the IJ rejected Alonso’s lack-of-
jurisdiction contention.
Alonso appealed the IJ’s denial of his motion to reopen to the Board. The
Board rejected his arguments and dismissed his appeal. It agreed with the IJ that
his motion to reopen was untimely and that equitable tolling was not warranted. It
also agreed with the IJ’s conclusion that any procedural errors in the issuance or
service of the Notice to Appear did not deprive the IJ of jurisdiction in 1997 and
are not a basis for reopening the proceedings. And the Board affirmed the IJ’s
determination not to reopen the proceedings sua sponte.
II.
We review the Board’s decision, unless and to the extent it expressly
adopted the IJ’s decision, in which case we review the IJ’s decision directly.
Perez-Zenteno v. U.S. Att’y Gen.,
913 F.3d 1301, 1306 (11th Cir. 2019). Where
the Board agrees with the IJ’s decision and then adds its own observations, we
review the decisions of both the Board and the IJ.
Id.
This Court reviews de novo questions of subject matter jurisdiction, Butka v.
U.S. Att’y Gen.,
827 F.3d 1278, 1282 n.1 (11th Cir. 2016), and issues of law,
Perez-Sanchez v. U.S. Att’y Gen.,
935 F.3d 1148, 1152 (11th Cir. 2019). We
review factual determinations under the substantial evidence standard; “reversal is
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warranted only if the evidence compels a reasonable fact finder to find otherwise.”
Id. (quotation marks omitted).
This Court reviews the denial of a motion to reopen removal proceedings for
an abuse of discretion. See Zhang v. U.S. Att’y Gen.,
572 F.3d 1316, 1319 (11th
Cir. 2009). “This review is limited to determining whether the [Board] exercised
its discretion in an arbitrary or capricious manner.”
Id. “The moving party bears a
heavy burden, as motions to reopen are disfavored, especially in removal
proceedings.”
Id. (internal citation omitted).
III.
We first address whether the Board abused its discretion when it denied
Alonso’s statutory motion to reopen as time-barred after determining that equitable
tolling was not warranted. Second, we address the Board’s decision not to reopen
its proceedings sua sponte.2
2
Alonso’s contention that the IJ lacked jurisdiction in 1997 because of defects in the
Notice to Appear is without merit, and we do not need to discuss it in depth. Defects in a Notice
to Appear do “not deprive the [Department of Homeland Security] of jurisdiction over . . .
removal proceedings.” Perez-Sanchez v. U.S. Att’y Gen.,
935 F.3d 1148, 1150 (9th Cir. 2019)
(concluding Pereira,
138 S. Ct. 2015, did not mean a defective Notice to Appear deprived the
DHS of jurisdiction). So the IJ had jurisdiction. See
id.
To the extent Alonso argues that defects in the Notice to Appear violated his procedural
due process rights, the Board and IJ did not abuse their discretion in holding that a motion to
reopen was not warranted because he did not suffer any prejudice from the alleged defects. He
had notice of the November and December 1997 hearings and attended them both, the IJ served
him with a Notice to Appear in November, and the IJ continued the proceedings for a month to
give him time to find a lawyer. The Board was not required to reopen the proceedings given the
lack of prejudice. See Gonzalez-Oropeza v. U.S. Att’y Gen.,
321 F.3d 1331, 1333 (11th Cir.
2003).
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A.
Alonso contends that the Board abused its discretion in denying as untimely
his statutory motion to reopen. He concedes he did not meet the statutory 90-day
deadline, see 8 U.S.C. § 1229a(c)(7)(C), but argues that equitable tolling applied to
his motion because he engaged in diligent efforts by moving to reopen within 90
days of Dimaya and Pereira. See Ruiz-Turcios v. U.S. Att’y Gen.,
717 F.3d 847,
851 (11th Cir. 2013) (“[E]quitable tolling generally requires a litigant to show (1)
that he has been pursuing his rights diligently, and (2) that some extraordinary
circumstances stood in his way.”) (quotation marks omitted).
The Board did not abuse its discretion in affirming the IJ’s determination
that equitable tolling was not warranted. It reasonably concluded that Alonso was
not diligent in pursuing his rights because he had waited nearly 13 years after
Leocal to challenge his removability. Alonso did not offer any compelling reason
why he could not have filed his motion to reopen sooner. He failed to offer
evidence showing that his alleged mental health issues were an extraordinary
circumstance that prevented him from consulting with an attorney between 2004
and 2018.3 And it is irrelevant that he filed his motion within 90 days of Dimaya
3
The only medical documentation Alonso provided in connection with his motion was a
three-sentence letter from a doctor, written in 2015, saying he had been treated by the doctors
since May 2005 and had several mental health conditions. It said nothing about how he
functioned on or off medicine or what conditions he had on or before May 2005.
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because Leocal clearly changed the law, making his underlying conviction no
longer an aggravated felony for removal purposes. Because Alonso failed to show
that he was diligently pursuing his rights and that some extraordinary circumstance
stood in his way, the Board did not exercise “its discretion in an arbitrary or
capricious manner” in denying his motion. Zhang,
572 F.3d at 1319. 4
B.
Alonso also argues that the Board abused its discretion by not exercising its
sua sponte authority to reopen proceedings. First, he suggests that the Board’s
decision was not based on “reasoned consideration” of his arguments. Second, he
asserts that the Board was required to exercise its discretionary authority because
not reopening the proceedings in light of Leocal would violate Alonso’s Fifth
Amendment procedural due process rights by depriving him of his liberty interest
in remaining in the United States. He asserts that granting sua sponte relief is
required under the Fifth Amendment even if “the typical requirements of equitable
tolling are not satisfied.”
Unlike a statutory motion to reopen, where we can review nondiscretionary
grounds cited by the Board in its decision, “we lack jurisdiction to review a
4
Alonso also asserted that he was incompetent during the 1997 removal proceedings
because of his alleged mental illness and therefore should receive the benefit of equitable tolling.
But substantial evidence supports the Board’s conclusion that Alonso did not establish that he
was incompetent during the removal proceedings in 1997.
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decision of the [Board] not to exercise its power to reopen a case sua sponte.”
Bing Quan Lin v. U.S. Att’y Gen.,
881 F.3d 860, 871 (11th Cir. 2018). That is
because reopening a case sua sponte is a decision committed to agency discretion
by law and there is “no standard to govern the [Board]’s exercise of its discretion.”
Lenis v. U.S. Att’y Gen.,
525 F.3d 1291, 1293–94 (11th Cir. 2008). However, “we
may retain jurisdiction where constitutional claims are raised relating to the
[Board]’s refusal to reopen sua sponte.” Bing Quan Lin, 881 F.3d at 871.
We lack jurisdiction to consider Alonso’s argument that the Board’s
decision not to sua sponte reopen proceedings was not based on “reasoned
consideration,” because that standard of review is derived from
8 U.S.C.
§ 1252(b)(1) (detailing scope and standard for review by the Court of Appeals), not
the U.S. Constitution. 5
5
As noted, it is unclear whether this Court has jurisdiction to review and overturn a
purely discretionary decision of the Board, such as declining to reopen proceedings sua sponte, if
that decision is based on a ground that violates the Constitution. See Lenis,
525 F.3d at 1294
n.7. Alonso suggests that the Equal Protection clause or another part of the Constitution requires
that a discretionary decision be based on reasoned consideration, instead of being arbitrary or
irrational. But even if such a constitutional requirement exists and we have jurisdiction to review
his argument, the Board satisfied that requirement by providing a reasoned decision.
A Board’s decision is reasoned if it is “is based on ‘reasoned consideration’ and shows
that the [Board] has ‘made adequate findings’ to support” its decision. Bing Quan Lin, 881 F.3d
at 872. Despite Alonso’s argument to the contrary, the Board did provide a reasoned basis for its
decision: Alonso’s unreasonable thirteen-year delay in filing his motion to reopen. That delay is
a “reasonable ground” for the Board to rely on in declining to exercise its discretionary power to
reopen Alonso’s proceedings. See id. at 875. And that ground is supported by adequate
findings: (1) Alonso could have brought his motion in 2004 after Leocal came out but waited
until 2018; and (2) he offered no material evidence supporting his argument that his mental
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Alonso’s procedural due process argument fails too, even if we have
jurisdiction to review it. A procedural due process claim “must assert a
deprivation of a constitutionally protected liberty or property interest.” Id. at 868–
89. And “there is no constitutionally protected interest in purely discretionary
forms of relief,” which include “motions to reopen and adjustment of status.” Id.
at 869 (quotation marks omitted). Alonso attempts to evade that clear precedent by
asserting that his protected liberty interest is his right to remain in the United
States. But he has no right to remain in the United States at all because he was
ordered removed after receiving all the process he was due. See Arambula-Medina
v. Holder,
572 F.3d 824, 829 (10th Cir. 2009) (concluding that the only protections
afforded an alien seeking to remain in the United States “are the minimal
procedural due process rights for an opportunity to be heard at a meaningful time
and in a meaningful manner”). The same is true for many kinds of discretionary
relief that could impact life or liberty; prisoners “do not have a liberty interest in
traditional state executive clemency” even though obtaining the discretionary relief
would free them, because they are not entitled to such relief as a matter of law.
See Dist. Att’ys Office for Third Jud. Distr. v. Osborne,
557 U.S. 52, 67–68
(2009). The Fifth Amendment therefore does not require the Board to grant
health prevented him from filing before 2018. For those reasons, the Board’s decision was based
on a reasoned consideration of Alonso’s arguments and was not arbitrary or irrational.
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Alonso relief because he has no protected liberty interest in a motion to reopen.
See Bing Quan Lin, 881 F.3d at 869.
PETITION DENIED.
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