USCA11 Case: 20-13030 Date Filed: 04/15/2021 Page: 1 of 5
[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
________________________
No. 20-13030
Non-Argument Calendar
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Agency No. A079-478-300
HONORIO MIGUEL URREGO,
MARTHA LUCIA CANON,
Petitioners,
versus
U.S. ATTORNEY GENERAL,
Respondent.
________________________
Petition for Review of a Decision of the
Board of Immigration Appeals
________________________
(April 15, 2021)
Before LAGOA, BRASHER, and ANDERSON, Circuit Judges.
PER CURIAM:
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Honorio Urrego and Martha Canon (“petitioners”) petition for review of the
Board of Immigration Appeals (“BIA”) final order affirming the immigration
judge’s (“IJ”) denial of their second motion to reopen and denying their motion for
sua sponte reopening. The petitioners argue that the BIA abused its discretion by
denying their second motion to reopen because their due process rights were
violated when they failed to receive their notices to appear (“NTA”) over 15 years
ago, but they concede that the motion was number barred under the pertinent
regulations. They also contend that the BIA violated their due process rights by
failing to grant them sua sponte reopening based on the same lack of notice claim.
I.
We review only the decision of the BIA, except to the extent that the BIA
expressly adopts the IJ’s decision. Flores-Panameno v. U.S. Att’y Gen.,
913 F.3d
1036, 1040 (11th Cir. 2019). The BIA is not required to discuss every piece of
evidence presented in the IJ’s order, but it is required to consider all the evidence
submitted. See Tan v. U.S. Att’y Gen.,
446 F.3d 1369, 1376 (11th Cir. 2006). We
review the BIA’s denial of a motion to reopen for an abuse of discretion. Zhang v.
U.S. Att’y Gen.,
572 F.3d 1316, 1319 (11th Cir. 2009). Under this deferential
standard of review, we examine whether the discretion exercised was arbitrary or
capricious.
Id.
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Generally, an alien may file one motion to reopen his removal proceedings.
INA § 240(c)(7)(A), 8 U.S.C. § 1229a(c)(7)(A). An in absentia removal order
may be rescinded upon the grant of a motion filed: (1) within 180 days from the
date of the order if the alien demonstrates that the failure to appear was due to
exceptional circumstances; or (2) at any time, if the alien did not receive notice in
accordance with
8 U.S.C. § 1229(a), governing NTAs, or if a detained alien failed
to appear through no fault of his own. INA § 240(b)(5)(C), 8 U.S.C.
§ 1229a(b)(5)(C).
Here, as the petitioners concede, the BIA did not abuse its discretion by
concluding that the petitioners’ second motion to reopen was number barred
because they previously filed a motion to reopen in August 2005. See Zhang,
572
F.3d at 1319; INA § 240(c)(7)(A), 8 U.S.C. § 1229a(c)(7)(A). Thus, because there
is no dispute that the petitioners’ second motion to reopen was number barred, we
deny the petition for review as to this issue.
II.
We must inquire into our subject matter jurisdiction whenever it may be
lacking. Chacon-Botero v. U.S. Att’y Gen.,
427 F.3d 954, 956 (11th Cir. 2005).
We lack jurisdiction to review decisions of the BIA refusing to reopen immigration
proceedings in an exercise of its sua sponte authority because neither
8 C.F.R.
§ 1003.2(a) nor
8 U.S.C. § 1103(g)(2) provide any “meaningful standard against
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which to judge the agency’s exercise of discretion.” See Lenis v. U.S. Att’y Gen.,
525 F.3d 1291, 1292-93 (11th Cir. 2008) (quotation marks omitted); see also Butka
v. U.S. Att’y Gen.,
827 F.3d 1278, 1286 (11th Cir. 2016). We acknowledged that
we might 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. We
later noted that the potential for jurisdiction over such claims remains an open
question but noted that the jurisdiction conferred in
8 U.S.C. § 1252(a)(2)(D) to
review any constitutional claims or questions of law does not apply to denials of
motions to reopen sua sponte. Butka, 827 F.3d at 1284, 1286 n.7.
Additionally, a petitioner may not create jurisdiction “simply by cloaking an
abuse of discretion argument in constitutional garb.” Arias v. U.S. Att’y Gen.,
482
F.3d 1281, 1284 (11th Cir. 2007) (quotation marks omitted). Instead, the
constitutional violation alleged must at least be colorable.
Id. at 1284. Finally, we
lack jurisdiction to “review earlier trips through immigration proceedings.” Bing
Quan Lin v. U.S. Att’y Gen.,
881 F.3d 860, 870 (11th Cir. 2018).
We lack jurisdiction over the petitioners’ challenge to the BIA’s denial of
sua sponte reopening. As an initial matter, the petitioners essentially assert two
distinct due process challenges. First, they assert that not receiving notice of their
removal hearing in 2004 violated their due process rights. Second, they assert that
the BIA’s failure to grant sua sponte reopening and remedy the first due process
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violation resulted in a second due process violation. The first due process violation
allegedly occurred when the IJ’s in absentia removal orders were entered during
the petitioners’ initial removal proceedings, which the petitioners did not appeal,
and we lack jurisdiction to “review earlier trips through immigration proceedings.”
See Bing Quan Lin, 881 F.3d at 870.
The second alleged due process violation was not a violation at all because
the petitioners had no constitutionally protected interest in being granted a
discretionary form of relief, and to confer jurisdiction, the constitutional violation
alleged must be colorable. See Arias,
482 F.3d at 1284. The petitioners’ argument
is essentially that the due process violation in 2004 rendered the circumstances
sufficiently exceptional such that the BIA should have reopened their removal
proceedings in 2020. But that claim amounts to a challenge to the BIA’s
discretionary authority to reopen their removal proceedings sua sponte, which is
precisely the type of claim that we are prohibited from exercising jurisdiction over
under Lenis. See Lenis,
525 F.3d at 1292. In essence, their argument that the BIA
violated their due process rights by declining to exercise its sua sponte authority is
“simply [] an abuse of discretion argument in constitutional garb.” See Arias,
482
F.3d at 1284. Accordingly, we dismiss this portion of the petition for review.
PETITION DENIED IN PART AND DIMISSED IN PART.
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