Honorio Miguel Urrego v. U.S. Attorney General

• Court: Court of Appeals for the Eleventh Circuit
• Decided: April 15, 2021
• Docket: 20-13030
• Status: Unpublished

Opinion

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[DO NOT PUBLISH]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 ________________________

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: USCA11 Case: 20-13030 Date Filed: 04/15/2021 Page: 2 of 5

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may be rescinded upon the grant of a motion filed: (1) within 180 days from the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.