Alba Lucia Reina Bernal v. U.S. Attorney General

Opinion

Case: 17-15720 Date Filed: 04/17/2019 Page: 1 of 10

[DO NOT PUBLISH]

IN THE UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT ________________________

Nos. 17-15720; 18-12315 Non-Argument Calendar ________________________

Agency No. A079-343-888

ALBA LUCIA REINA BERNAL,

Petitioner,

versus

U.S. ATTORNEY GENERAL,

Respondent.

________________________

Petitions for Review of a Decision of the Board of Immigration Appeals ________________________

(April 17, 2019)

Before ED CARNES, Chief Judge, MARTIN, and NEWSOM, Circuit Judges.

PER CURIAM: Case: 17-15720 Date Filed: 04/17/2019 Page: 2 of 10

Alba Lucia Reina Bernal seeks review of decisions by the Board of

Immigration Appeals denying (1) her motion requesting that the BIA sua sponte

reopen her removal proceedings, (2) her motion for reconsideration of the BIA’s

denial of her motion to reopen, and (3) her second motion for sua sponte

reopening.

I.

Reina Bernal is a citizen of Colombia who came to the United States in 1999

on a non-immigrant B visa. The next year she changed her status to that of a non-

immigrant student on an F visa, and the year after that she applied for asylum. In

July 2001 the Immigration and Naturalization Services rejected her asylum

application and charged her as removable for failing to comply with the conditions

of her non-immigrant status. She conceded removability before an immigration

judge, but renewed her asylum claim and sought statutory withholding of removal.

She argued that she had been persecuted, threatened, and beaten by members of the

Revolutionary Armed Forces of Colombia (FARC) for her involvement in political

campaigns and her work as an architect for a municipal planning division in

Colombia. In November 2002 the IJ denied her application and ordered removal,

and Reina Bernal appealed to the BIA. The BIA dismissed her appeal in April

2004. She did not petition this Court for review.

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Thirteen years later, in June 2017, Reina Bernal filed with the BIA a

“motion to rescind removal order and reopen proceedings sua sponte due to

eligibility for newly available relief.” She stated that her attorney in the earlier

proceeding had not told her of the BIA’s ruling in time for her to petition this

Court for review and that her marriage to a United States citizen made her newly

eligible for an adjustment of status under section 245(a) of the Immigration and

Nationality Act, 8 U.S.C. § 1255(a). The BIA denied the motion, stating that

“becoming potentially eligible for relief from removal based on equities acquired

after the issuance of the final administrative order does not constitute an

exceptional situation warranting the exercise of [the Board’s] discretion.”

Reina Bernal petitioned this Court for review and a week later filed a motion

for reconsideration with the BIA. In that motion before the BIA she cited to

similar cases in which the BIA had recognized that becoming eligible for

previously unavailable relief was an exceptional circumstance that warranted the

reopening of removal proceedings, and she argued that her due process and equal

protection rights would be violated if the BIA denied her motion when it had

granted so many similar ones. She also argued, based on a 2017 Ninth Circuit

decision, that there had been an intervening and fundamental change in law

concerning withholding of removal and that changed political conditions in

Colombia made her eligible for asylum.

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The BIA construed that second filing as both a motion for reconsideration

and a second motion to reopen, and it denied them both. It explained that the

motion for reconsideration did not identify any error of law in the initial order to

warrant reconsideration and that the second motion to reopen was time barred and

did not qualify for an exception.

Reina Bernal again petitioned this Court for review, and we consolidated the

two petitions.

II.

Reina Bernal raises a number of arguments in her petitions, but they all fall

within two broad categories: (1) her contention that the BIA abused its discretion

by denying her motions to sua sponte reopen her removal proceedings so she could

pursue an adjustment of status based on her husband’s visa petition, and (2) her

contention that the BIA erred by denying her motions for statutory reopening so

she could pursue asylum protection based on changed country conditions in

Colombia and a change in law here. We will address each of those contentions in

order, beginning with whether we have jurisdiction to consider them. See Lenis v.

U.S. Att’y Gen., 525 F.3d 1291, 1292 (11th Cir. 2008) (“We are, of course, always

required to address whether we have subject-matter jurisdiction.”). We make that

jurisdictional determination de novo. Chao Lin v. U.S. Att’y Gen., 677 F.3d 1043,

1045 (11th Cir. 2012).

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A.

Reina Bernal first argues that the BIA’s refusal to reopen her removal

proceedings to allow her to pursue adjustment of status was arbitrary and

capricious because the Board had granted relief to other applicants in nearly

identical situations. We would ordinarily review the denial of a motion to reopen

for abuse of discretion, see Jiang v. U.S. Att’y Gen., 568 F.3d 1252, 1256 (11th

Cir. 2009), but we lack jurisdiction to review the BIA’s denial of a motion to

reopen based on its sua sponte authority, Lenis, 525 F.3d at 1292–94.

There is a possible exception. In Lenis, we left open the question whether

“an appellate court may have jurisdiction over constitutional claims related to the

BIA’s decision not to exercise its sua sponte power.” Id. at 1294 n.7. “That

question still remains open.” Butka v. U.S. Att’y Gen., 827 F.3d 1278, 1284 (11th

Cir. 2016); see Bing Quan Lin v. U.S. Att’y Gen., 881 F.3d 860, 871 (11th Cir.

2018) (“[W]e may retain jurisdiction where constitutional claims are raised relating

to the BIA’s refusal to reopen sua sponte.”) (emphasis added) (citing Lenis, 525

F.3d at 1294 n.7).

We need not answer that question now, though, because “[a] petitioner may

not create the jurisdiction that Congress chose to remove 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). And that is what

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Reina Bernal has done. She argues that the BIA violated her due process and equal

protection rights because “the BIA did not offer any reason for denying [her]

[motion to reopen], when record evidence demonstrates that similarly situated

respondents were granted sua sponte reopening.” We do not have jurisdiction to

consider this “abuse of discretion claim[] merely couched in constitutional

language.” Id.

Reina Bernal also claims that she fits within another exception because

whether she “established prima facie eligibility for [adjustment of status] is a

question of law,” which she says the Court always has jurisdiction to review. Not

so. Our decision in Lenis forecloses her “argument that this Court could review

the legal issues presented in her motion[s] to reopen, while declining to reach the

question of whether the BIA should have exercised its discretionary power to grant

sua sponte reopening.” Butka, 827 F.3d at 1285–86 (citing Lenis, 525 F.3d at

1292).

B.

Reina Bernal’s second argument is that the BIA abused its discretion by

refusing to reopen her removal proceedings so she could pursue asylum,

withholding of removal, and protection under the Convention Against Torture. In

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its order denying her second motion to reopen, 1 the BIA determined that the

motion was untimely and did not qualify for an exception, did not include the

required application for asylum, and did not include sufficient evidence to establish

prima facie eligibility for asylum relief.

To the extent Reina Bernal sought a sua sponte reopening of her removal

proceedings based on her asylum claims, we are, for the same reasons discussed

above, without jurisdiction to review the BIA’s discretionary decision. See Lenis,

525 F.3d at 1294. We also lack jurisdiction to hear her arguments about why the

BIA’s 2004 decision denying her asylum application was wrong. She could have

petitioned this Court for review of that decision then but did not do so. It is too

late for us to review it now. See Chao Lin, 677 F.3d at 1046.

We can review the BIA’s denial of her motion for statutory reopening, and

we do so under the abuse of discretion standard. See Butka, 827 F.3d at 1283.

Ordinarily, a party may file only one motion to reopen removal proceedings, “and

that motion must be filed no later than 90 days after the date on which the final

administrative decision was rendered in the proceeding sought to be reopened.” 8

1 Reina Bernal did not mention changed country conditions or her desire to pursue an asylum claim in her initial motion to reopen filed June 28, 2017. To the extent any of her current asylum arguments are based on the BIA’s decision to deny that motion, we are without jurisdiction to review them because she did not present them to the BIA. See Amaya- Artunduaga v. U.S. Att’y Gen., 463 F.3d 1247, 1250 (11th Cir. 2006) (“We lack jurisdiction to consider a claim raised in a petition for review unless the petitioner has exhausted h[er] administrative remedies with respect thereto.”). 7 Case: 17-15720 Date Filed: 04/17/2019 Page: 8 of 10

C.F.R. § 1003.2(c)(2); see 8 U.S.C. § 1229a(c)(7)(C)(i). That makes Reina

Bernal’s motion about 13 years too late.

Those time and numerical limitations do not apply if the motion to reopen is

to pursue asylum and is “predicated on changed country conditions . . . [that] are

material and could not have been discovered at the time of the removal

proceedings.” Jiang, 568 F.3d at 1256; see 8 U.S.C. § 1229a(c)(7)(C)(ii); 8 C.F.R.

§ 1003.2(c)(3)(ii). “An alien who attempts to show that the evidence is material

bears a heavy burden and must present evidence that demonstrates that, if the

proceedings were opened, the new evidence would likely change the result in the

case.” Jiang, 568 F.3d at 1256–57. Reina Bernal argues that she met this

requirement by attaching to her motion to reconsider news reports about the 2016

Colombian peace accord with FARC and statements by the U.S. ambassador that

FARC was not complying with its obligations under that agreement. The BIA

found that this evidence was insufficient to meet the timing exception or to

establish prima facie eligibility for asylum. We cannot say that those

determinations constituted an abuse of discretion. See Bing Quan Lin, 881 F.3d at

872–73 (explaining that we “afford[] significant discretion” to decisions denying a

motion to reopen immigration proceedings and that “going beyond the numerical

and time bars, the BIA may deny a motion for . . . failure to establish a prima facie

case”).

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The same result is true of Reina Bernal’s other timeliness argument. That

argument relies on 8 C.F.R. § 1208.4(a)(4)(i)(B), which permits asylum

applications to be filed out of time if there are “[c]hanges in the applicant’s

circumstances that materially affect the applicant’s eligibility for asylum, including

changes in applicable U.S. law . . . .” Id. Reina Bernal cites an out-of-circuit case,

Barajas-Romero v. Lynch, 846 F.3d 351, 358 & n.11 (9th Cir. 2017), to argue that

the law governing asylum petitions has changed and that this change would affect

her petition. But as the BIA recognized in its order denying her motion, that case,

“arising in the jurisdiction of the United States Court of Appeals for the Ninth

Circuit . . . is not binding in these proceedings, which arise in the Eleventh

Circuit.” That determination was not an abuse of discretion, nor was it, as Reina

Bernal also asserts, otherwise unreasoned. See Jeune v. U.S. Att’y Gen., 810 F.3d

792, 803 (11th Cir. 2016) (“A reasoned-consideration examination . . . looks to see

whether the agency has considered the issues raised and announced its decision in

terms sufficient to enable a reviewing court to perceive that it has heard and

thought and not merely reacted.”) (alterations and quotation marks omitted).

III.

To the extent that Reina Bernal seeks review of unexhausted claims, her

underlying order of removal, or the BIA’s denial of her motion to reopen based on

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its sua sponte authority, we dismiss the petitions for lack of jurisdiction. We deny

the petitions as to whatever claims or parts of claims are left.

PETITIONS DISMISSED IN PART and DENIED IN PART.