Case: 17-13688 Date Filed: 06/20/2018 Page: 1 of 6
[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT ________________________
No. 17-13688 Non-Argument Calendar ________________________
Agency No. A034-346-402
GARY THOMAS GUEVARA,
Petitioner,
versus
U.S. ATTORNEY GENERAL,
Respondent.
________________________
Petition for Review of a Decision of the Board of Immigration Appeals ________________________
(June 20, 2018)
Before MARTIN, JORDAN, and JILL PRYOR, Circuit Judges.
PER CURIAM: Case: 17-13688 Date Filed: 06/20/2018 Page: 2 of 6
Gary Guevara, a native and citizen of Trinidad and Tobago, petitions for
review of the Board of Immigration Appeals’ order affirming the Immigration
Judge’s denial of his motion to reopen. Mr. Guevara argues that his motion to
reopen should have been granted because he did not have notice of his hearing date
and because his failure to appear was his prior counsel’s fault. After careful
review, we determine that we lack jurisdiction over his appeal and, accordingly,
dismiss the petition.
I
Mr. Guevara was born in Trinidad and Tobago and admitted to the United
States as a lawful permanent resident on November 23, 1973. Over a span of about
20 years, he was convicted of three offenses: grand larceny (August 24, 1979),
negotiating a worthless instrument (January 31, 1996), and theft of property (May
13, 1998). In 2010, Mr. Guevara left the United States for a brief trip to Trinidad
and attempted to reenter on April 6, 2010. On July 6, 2010, the Department of
Homeland Security issued him a Notice to Appear before an immigration judge
and charged him with inadmissibility under 8 U.S.C. § 1182(a)(2)(A)(i)(I) because
he had been convicted of crimes involving moral turpitude. See also Immigration
and Nationality Act § 212(a)(2)(A)(i)(I).
Mr. Guevara’s counsel initially filed a motion to terminate proceedings on
his behalf on July 18, 2012, arguing that his civil and political rights were restored
2 Case: 17-13688 Date Filed: 06/20/2018 Page: 3 of 6
because the Governor of Alabama granted him a pardon. On August 14, 2012, the
IJ denied his motion to terminate proceedings, finding he had not been granted a
full and unconditional pardon.
Mr. Guevara then conceded his removability and filed an untimely
application for waiver of inadmissibility on August 29, 2013. On August 5, 2015,
Mr. Guevara’s counsel was issued a Notice of Change in Hearing Location
indicating the individual hearing date was scheduled for April 4, 2016. Mr.
Guevara and his counsel failed to appear at the scheduled hearing, so the IJ ordered
him removed in absentia. See 8 U.S.C. § 1229a(b)(5)(A) (providing that, after an
alien or counsel receives written notice, he shall be ordered removed in absentia if
he does not appear at his removal proceeding).
Mr. Guevara filed a motion to reopen proceedings on October 3, 2016. He
asserted that he believed the hearing was scheduled for October 14, 2016. But, he
acknowledged in his motion, that his “[c]ounsel received notice that the hearing
date would be changed to April 4, 2016 on June 28, 2014.” See Motion to Reopen
at ¶ 5.1
The IJ denied his motion to reopen, finding that Mr. Guevara did not
overcome the presumption of notice and pointing to record evidence establishing 1 Mr. Guevara’s counsel’s recollection that he received notice of the hearing date change on June 28, 2014 does not appear to align with the government’s records that the notice was mailed in August of 2015. Mr. Guevara’s counsel may be mistaken about when he received the notice of the hearing date, but nevertheless acknowledged that he received notice that it was set for April 4, 2016. As we explain, we do not have jurisdiction over these factual questions. 3 Case: 17-13688 Date Filed: 06/20/2018 Page: 4 of 6
that notice was sent and his attorney’s concession establishing that notice was
received. The IJ also determined that exceptional circumstances did not exist to
warrant reopening. See INA § 240(b)(5)(C)(i), 8 U.S.C. § 1229a(b)(5)(C)(i)
(providing the procedure for the IJ to reopen a case “because of exceptional
circumstances”). Mr. Guevara appealed to the BIA, which affirmed the IJ’s
decision and declined to order sua sponte reopening. See 8 C.F.R. § 1003.2(a)
(giving the BIA discretionary authority to reopen any case sua sponte). He timely
appealed the BIA’s decision.
II
We are “obligated to inquire into subject-matter jurisdiction sua sponte
whenever it may be lacking.” Cadet v. Bulger, 377 F.3d 1173, 1179 (11th Cir.
2004). We review our subject-matter jurisdiction de novo. See Amaya-
Artunduaga v. U.S. Att’y Gen., 463 F.3d 1247, 1250 (11th Cir. 2006).
Under 8 U.S.C. § 1252(a)(2)(C), we lack jurisdiction to review a “final order
of removal against an alien who is removable by reason of having committed a
criminal offense in [§] 1182(a)(2).” See also Arias v. U.S. Att’y Gen, 482 F.3d
1281, 1284 (11th Cir. 2007). We also lack jurisdiction to review discretionary
decisions of the Attorney General or the Secretary of Homeland Security. See 8
U.S.C. § 1252(a)(2)(B)(ii). Nevertheless, the REAL ID Act of 2005, which
amended 8 U.S.C. § 1252, restored us partial jurisdiction to review “constitutional
4 Case: 17-13688 Date Filed: 06/20/2018 Page: 5 of 6
claims or questions of law” that are raised in the petition for review. See 8 U.S.C.
§ 1252(a)(2)(D). See also Arias, 482 F.3d at 1283–84 (explaining that the REAL
ID Act provides jurisdiction over petitions if a question of law or colorable
constitutional claim arises). A question of law, as the phrase is used in
§ 1252(a)(2)(D), includes claims by the petitioner “challeng[ing] the application of
an undisputed fact pattern to a legal standard.” Jean-Pierre v. U.S. Att’y Gen., 500
F.3d 1315, 1322 (11th Cir. 2007). We explained in Alexandre v. U.S. Attorney
General, 452 F.3d 1204, 1206 (11th Cir. 2006), that our jurisdiction under the
REAL ID Act “offers the same review as that formerly afforded in habeas corpus
which provided legal, but not factual or discretionary, determinations.” See also
Jean-Pierre, 500 F.3d at 1322 (noting that when “presented with a mixed question
of law and fact, the court should analyze it to the extent there are legal elements,
but should not review any factual elements”). Accordingly, unless Mr. Guevara
raises a question of law or a constitutional claim arising out of the removal
proceedings, we lack jurisdiction over the petition. See 8 U.S.C.
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Case: 17-13688 Date Filed: 06/20/2018 Page: 1 of 6
[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT ________________________
No. 17-13688 Non-Argument Calendar ________________________
Agency No. A034-346-402
GARY THOMAS GUEVARA,
Petitioner,
versus
U.S. ATTORNEY GENERAL,
Respondent.
________________________
Petition for Review of a Decision of the Board of Immigration Appeals ________________________
(June 20, 2018)
Before MARTIN, JORDAN, and JILL PRYOR, Circuit Judges.
PER CURIAM: Case: 17-13688 Date Filed: 06/20/2018 Page: 2 of 6
Gary Guevara, a native and citizen of Trinidad and Tobago, petitions for
review of the Board of Immigration Appeals’ order affirming the Immigration
Judge’s denial of his motion to reopen. Mr. Guevara argues that his motion to
reopen should have been granted because he did not have notice of his hearing date
and because his failure to appear was his prior counsel’s fault. After careful
review, we determine that we lack jurisdiction over his appeal and, accordingly,
dismiss the petition.
I
Mr. Guevara was born in Trinidad and Tobago and admitted to the United
States as a lawful permanent resident on November 23, 1973. Over a span of about
20 years, he was convicted of three offenses: grand larceny (August 24, 1979),
negotiating a worthless instrument (January 31, 1996), and theft of property (May
13, 1998). In 2010, Mr. Guevara left the United States for a brief trip to Trinidad
and attempted to reenter on April 6, 2010. On July 6, 2010, the Department of
Homeland Security issued him a Notice to Appear before an immigration judge
and charged him with inadmissibility under 8 U.S.C. § 1182(a)(2)(A)(i)(I) because
he had been convicted of crimes involving moral turpitude. See also Immigration
and Nationality Act § 212(a)(2)(A)(i)(I).
Mr. Guevara’s counsel initially filed a motion to terminate proceedings on
his behalf on July 18, 2012, arguing that his civil and political rights were restored
2 Case: 17-13688 Date Filed: 06/20/2018 Page: 3 of 6
because the Governor of Alabama granted him a pardon. On August 14, 2012, the
IJ denied his motion to terminate proceedings, finding he had not been granted a
full and unconditional pardon.
Mr. Guevara then conceded his removability and filed an untimely
application for waiver of inadmissibility on August 29, 2013. On August 5, 2015,
Mr. Guevara’s counsel was issued a Notice of Change in Hearing Location
indicating the individual hearing date was scheduled for April 4, 2016. Mr.
Guevara and his counsel failed to appear at the scheduled hearing, so the IJ ordered
him removed in absentia. See 8 U.S.C. § 1229a(b)(5)(A) (providing that, after an
alien or counsel receives written notice, he shall be ordered removed in absentia if
he does not appear at his removal proceeding).
Mr. Guevara filed a motion to reopen proceedings on October 3, 2016. He
asserted that he believed the hearing was scheduled for October 14, 2016. But, he
acknowledged in his motion, that his “[c]ounsel received notice that the hearing
date would be changed to April 4, 2016 on June 28, 2014.” See Motion to Reopen
at ¶ 5.1
The IJ denied his motion to reopen, finding that Mr. Guevara did not
overcome the presumption of notice and pointing to record evidence establishing 1 Mr. Guevara’s counsel’s recollection that he received notice of the hearing date change on June 28, 2014 does not appear to align with the government’s records that the notice was mailed in August of 2015. Mr. Guevara’s counsel may be mistaken about when he received the notice of the hearing date, but nevertheless acknowledged that he received notice that it was set for April 4, 2016. As we explain, we do not have jurisdiction over these factual questions. 3 Case: 17-13688 Date Filed: 06/20/2018 Page: 4 of 6
that notice was sent and his attorney’s concession establishing that notice was
received. The IJ also determined that exceptional circumstances did not exist to
warrant reopening. See INA § 240(b)(5)(C)(i), 8 U.S.C. § 1229a(b)(5)(C)(i)
(providing the procedure for the IJ to reopen a case “because of exceptional
circumstances”). Mr. Guevara appealed to the BIA, which affirmed the IJ’s
decision and declined to order sua sponte reopening. See 8 C.F.R. § 1003.2(a)
(giving the BIA discretionary authority to reopen any case sua sponte). He timely
appealed the BIA’s decision.
II
We are “obligated to inquire into subject-matter jurisdiction sua sponte
whenever it may be lacking.” Cadet v. Bulger, 377 F.3d 1173, 1179 (11th Cir.
2004). We review our subject-matter jurisdiction de novo. See Amaya-
Artunduaga v. U.S. Att’y Gen., 463 F.3d 1247, 1250 (11th Cir. 2006).
Under 8 U.S.C. § 1252(a)(2)(C), we lack jurisdiction to review a “final order
of removal against an alien who is removable by reason of having committed a
criminal offense in [§] 1182(a)(2).” See also Arias v. U.S. Att’y Gen, 482 F.3d
1281, 1284 (11th Cir. 2007). We also lack jurisdiction to review discretionary
decisions of the Attorney General or the Secretary of Homeland Security. See 8
U.S.C. § 1252(a)(2)(B)(ii). Nevertheless, the REAL ID Act of 2005, which
amended 8 U.S.C. § 1252, restored us partial jurisdiction to review “constitutional
4 Case: 17-13688 Date Filed: 06/20/2018 Page: 5 of 6
claims or questions of law” that are raised in the petition for review. See 8 U.S.C.
§ 1252(a)(2)(D). See also Arias, 482 F.3d at 1283–84 (explaining that the REAL
ID Act provides jurisdiction over petitions if a question of law or colorable
constitutional claim arises). A question of law, as the phrase is used in
§ 1252(a)(2)(D), includes claims by the petitioner “challeng[ing] the application of
an undisputed fact pattern to a legal standard.” Jean-Pierre v. U.S. Att’y Gen., 500
F.3d 1315, 1322 (11th Cir. 2007). We explained in Alexandre v. U.S. Attorney
General, 452 F.3d 1204, 1206 (11th Cir. 2006), that our jurisdiction under the
REAL ID Act “offers the same review as that formerly afforded in habeas corpus
which provided legal, but not factual or discretionary, determinations.” See also
Jean-Pierre, 500 F.3d at 1322 (noting that when “presented with a mixed question
of law and fact, the court should analyze it to the extent there are legal elements,
but should not review any factual elements”). Accordingly, unless Mr. Guevara
raises a question of law or a constitutional claim arising out of the removal
proceedings, we lack jurisdiction over the petition. See 8 U.S.C. § 1252(a)(2)(D).
We conclude that Mr. Guevara has not properly raised a question of law or a
constitutional claim. His contention on appeal is that the BIA erred in refusing to
reopen his case because he lacked notice of the hearing date. Our precedent makes
clear, however, that in the context of a motion to reopen, whether an alien received
sufficient notice of his removal hearing is a finding of fact over which we lack
5 Case: 17-13688 Date Filed: 06/20/2018 Page: 6 of 6
jurisdiction. See Contreras–Rodriguez v. U.S. Att’y Gen., 462 F.3d 1314, 1317
(11th Cir. 2006) (reviewing constitutional claim, but explaining that, with respect
to notice, “it is not our role to make such factual findings”). Mr. Guevara’s
arguments on appeal underscore the factual nature of his petition. Rather than
raising legal claims or presenting constitutional issues, he argues that he lacked
notice because he erroneously relied on the advice of counsel and thought his
hearing was to occur in October of 2016, not April 4, 2016. Further, his opening
brief acknowledges that he is requesting our review of “findings of fact.” See
Initial Br. at 2. Without a legal question or constitutional claim to review, we lack
jurisdiction. See Arias, 482 F.3d at 1283–84.
Without a constitutional claim, we also lack jurisdiction to review the BIA’s
refusal to exercise its discretion and sua sponte reopen Mr. Guevara’s case. See
Butka v. U.S. Att’y Gen., 827 F.3d 1278, 1286 (11th Cir. 2016) (“As [petitioner]
has not raised any constitutional claims, we lack jurisdiction to review the BIA’s
denial of her motion for sua sponte reopening.”).
III
For the foregoing reasons, we lack jurisdiction to review Mr. Guevara’s
petition.
PETITION DISMISSED.