Esperanza Silva-Solis v. U.S. Attorney General

• Court: Court of Appeals for the Eleventh Circuit
• Decided: August 2, 2018
• Docket: 16-17710
• Status: Unpublished

Opinion

Case: 16-17710 Date Filed: 08/02/2018 Page: 1 of 3

[DO NOT PUBLISH]

IN THE UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT ________________________

No. 16-17710 Non-Argument Calendar ________________________

Agency No. A097-828-139

ESPERANZA SILVA-SOLIS,

Petitioner,

versus

U.S. ATTORNEY GENERAL,

Respondent.

________________________

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

(August 2, 2018)

Before MARCUS, ROSENBAUM and BLACK, Circuit Judges.

PER CURIAM: Case: 16-17710 Date Filed: 08/02/2018 Page: 2 of 3

Esperanza Silva-Solis, proceeding pro se, petitions for review of the Board

of Immigration Appeals’ (BIA) order affirming the Immigration Judge’s (IJ) denial

of her motion to reopen her removal proceedings pursuant to its sua sponte

authority. The Government filed a motion to dismiss Silva-Solis’s petition for lack

of jurisdiction, and we previously ordered the Government’s motion be carried

with the case.

Both the BIA and the IJ have the authority to reopen removal proceedings or

reconsider earlier decisions pursuant to their sua sponte authority at any time.

8 C.F.R. § 1003.2(a); Butka v. U.S. Att’y Gen., 827 F.3d 1278, 1283 (11th Cir.

2016), cert. denied sub nom. Butka v. Sessions, 138 S. Ct. 299 (2017). 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 v. U.S. Att’y Gen., 525 F.3d 1291, 1292-94 (11th Cir. 2008).

We lack jurisdiction to review the denial of Silva-Solis’s motion to reopen

under the BIA’s sua sponte authority. See Lenis, 525 F.3d at 1293. Although we

have potentially reserved jurisdiction to review such decisions where constitutional

issues are implicated, no such claims are present in this case. See id. at 1294 n.7;

Butka, 827 F.3d at 1284. Silva-Solis’s claim, that the BIA “abused its discretion”

by violating her due process rights when it failed to consider her evidence of

2 Case: 16-17710 Date Filed: 08/02/2018 Page: 3 of 3

changed law, is an abuse of discretion argument that is not “colorable” as a

constitutional issue. See Arias v. U.S. Att’y Gen., 482 F.3d 1281, 1283-84 (11th

Cir. 2007) (holding, in the context of constitutional challenges to final orders of

removal that would otherwise be unreviewable by us, that such constitutional

claims must be “colorable” and not simply abuse of discretion arguments disguised

in constitutional language). Silva-Solis’s argument regards the BIA’s failure to

consider an alleged change in law, which this Court has held it lacks jurisdiction to

consider. See Butka, 827 F.3d at 1285-86; Lenis, 525 F.3d at 1292, 1294.

Accordingly, we grant the Government’s motion and dismiss Silva-Solis’s petition

for lack of jurisdiction.

PETITION DISMISSED.