Hugo Islas-Enriquez v. U.S. Attorney General

• Court: Court of Appeals for the Eleventh Circuit
• Decided: July 13, 2021
• Docket: 20-11501
• Status: Unpublished

Opinion

USCA11 Case: 20-11501 Date Filed: 07/13/2021 Page: 1 of 6

[DO NOT PUBLISH]

IN THE UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT ________________________

No. 20-11501 Non-Argument Calendar ________________________

Agency No. A206-192-832

HUGO ISLAS-ENRIQUEZ,

Petitioner,

versus

U.S. ATTORNEY GENERAL,

Respondent.

________________________

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

(July 13, 2021)

Before WILLIAM PRYOR, Chief Judge, MARTIN and BRANCH, Circuit Judges.

PER CURIAM: USCA11 Case: 20-11501 Date Filed: 07/13/2021 Page: 2 of 6

Hugo Islas-Enriquez, a native and citizen of Mexico, petitions for review of

the denial of his motion to reconsider an order affirming the denial of his motion to

reopen. 8 U.S.C. § 1229a(c)(6). Islas-Enriquez also moves for a summary reversal

of the denial of his motion to reconsider. Islas-Enriquez’s motion to reopen was

untimely and he did not challenge that finding on appeal to the Board of

Immigration Appeals. Because Islas-Enriquez failed to identify error in the denial

of his motion to reconsider, we deny both his petition for review and his motion for

summary reversal.

In 2013, the Department of Homeland Security charged Islas-Enriquez as

inadmissible for entering the United States at an unknown time and place without

being admitted or paroled by an immigration officer. Islas-Enriquez conceded that

he was inadmissible and applied for cancellation of removal, id. § 1229b(b). In

November 2017, an immigration judge ruled that Islas-Enriquez was ineligible for

cancellation of removal because he had not resided in the country continuously for

ten years. Islas-Enriquez did not appeal the decision.

Over a year later, in February 2019, Islas-Enriquez moved to reopen his

removal proceedings based on Pereira v. Sessions, 138 S. Ct. 2105 (2018), but the

immigration judge found that the motion was “more than one (1) year untimely”

and that Islas-Enriquez “failed to establish that he was prima facie eligible for

relief.” The immigration judge determined that a notice to appear that the

2 USCA11 Case: 20-11501 Date Filed: 07/13/2021 Page: 3 of 6

Department mailed Islas-Enriquez on February 4, 2014, “triggered the stop-time

rule,” Pereira, 138 S. Ct. at 2110, by stating that he was scheduled to appear

before an Immigration Judge on April 21, 2015, at 8:30 a.m. at 180 Spring St. SW,

Atlanta, Georgia, 30303. And the immigration judge explained that Islas-

Enriquez’s “claim[] that he entered the United States in April of 2004[ was]

approximately two (2) months too late to meet the ten (10) year continuous

presence requirement.” Because the immigration judge was “not convinced that

exceptional circumstances [had] been established in [the] case” to except Islas-

Enriquez from the one-year deadline to file a motion to reopen,” “no sua sponte

basis [existed] upon which to reopen [his] case.”

Islas-Enriquez appealed to the Board. He argued that his notice to appear

was defective, that his removal to Mexico would cause his seven children extreme

and unusual hardship and deny him treatment for his severe reactive arthritis, and

that the Board should sua sponte reopen his removal proceedings. But Islas-

Enriquez did not challenge the finding that his motion to reopen was untimely.

The Board “adopt[ed] and affirm[ed] the Immigration Judge’s decision” and

dismissed Islas-Enriquez’s appeal. The Board rejected Islas-Enriquez’s argument

that his notice to appear was defective under Pereira. “[I]nsofar as [Islas-Enriquez]

requested reopening to pursue cancellation of removal,” the Board ruled that he

was ineligible for such relief because, “as held by the Immigration Judge, [Islas-

3 USCA11 Case: 20-11501 Date Filed: 07/13/2021 Page: 4 of 6

Enriquez] [could not] demonstrate the requisite period of continuous presence.”

The Board also “agreed with the Immigration Judge that sua sponte reopening

[was] not warranted” because that “authority [was] reserved for truly exceptional

circumstances,” which were absent “because [Islas-Enriquez] [was] not statutorily

eligible for relief.”

Islas-Enriquez moved for the Board to reconsider its decision. He argued

that the Board erred in finding that he was statutorily ineligible for cancellation of

removal and that his exceptional circumstances warranted sua sponte reopening his

removal proceedings.

The Board denied Islas-Enriquez’s motion to reconsider. The Board found

that the motion to reconsider was timely, but it failed to “identify any error of law

or fact in that Board decision or identify any argument advanced that was

overlooked by the Board.” And the Board “reiterate[d] that [Islas-Enriquez] ha[d]

not established prejudice, in that he ha[d] not established clear error in any finding

of fact, or legal error in any conclusion of law, made by the Immigration Judge.”

“The decision to grant or deny . . . a motion to reconsider is within the

discretion of the [Board], and we have recognized that this discretion is very

broad.” Scheerer v. U.S. Att’y Gen., 513 F.3d 1244, 1253 (11th Cir. 2008) (internal

citation and quotation marks omitted). “Our review is limited to determining

whether there has been an exercise of administrative discretion and whether the

4 USCA11 Case: 20-11501 Date Filed: 07/13/2021 Page: 5 of 6

matter of exercise has been arbitrary or capricious.” Ali v. U.S. Att’y Gen., 443

F.3d 804, 808 (11th Cir. 2006) (quoting Abdi v. U.S. Att’y Gen., 430 F.3d 1148,

1149 (11th Cir. 2005)).

We cannot say that the Board abused its discretion by denying Islas-

Enriquez’s motion to reconsider. He sought reconsideration of the denial of his

motion to reopen as untimely. See 8 U.S.C. § 1229a(c)(7)(C)(i). And Islas-

Enriquez did not challenge the timeliness ruling in his appeal to the Board. See

Amaya-Artunduaga v. U.S. Att’y Gen., 463 F.3d 1247, 1250 (11th Cir. 2006). So

Islas-Enriquez offered no reason, much less a compelling one, for the Board to

reconsider its decision to affirm the denial of his motion to reopen.

Islas-Enriquez challenges the refusal of the Board to sua sponte reopen his

removal proceedings, but we lack jurisdiction to review that decision. Islas-

Enriquez never petitioned this Court to review the denial of his motion to reopen.

“[W]e do not have 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). And, even if Islas-Enriquez had petitioned for review, “we cannot review

decisions of the [Board] that are committed to its discretion,” like “a decision . . .

not to exercise its power to reopen a case sua sponte.” Id. at 871.

To be sure, Islas-Enriquez did not receive a single notice to appear sufficient

to terminate his period of continuous physical presence in the United States, as

5 USCA11 Case: 20-11501 Date Filed: 07/13/2021 Page: 6 of 6

required by the “stop-time” statute, 8 U.S.C. § 1229b(d)(1). See Niz-Chavez v.

Garland, 141 S. Ct. 1474 (2021). But Islas-Enriquez had to challenge the finding

that he was ineligible for cancellation of removal in his initial removal

proceedings. Islas-Enriquez neither challenged the immigration judge’s finding

that he failed to maintain continuous physical presence in this country for ten years

during his removal hearing nor appealed the denial of his application for

cancellation of removal to the Board.

Islas-Enriquez was not entitled to relief by means of a motion to reopen. A

change of law is not a ground on which to reopen a removal proceeding. The

removal statute, 8 U.S.C. § 1229a, provides for reopening removal proceedings

based on a change in country conditions, id. § 1229a(c)(7)(ii), and the battery of

spouses, children, and parents, id. § 1229a(c)(7)(iv). Islas-Enriquez’s motion to

reopen was, without dispute, untimely. See id. § 1229a(c)(7)(C)(i). And the

government has not waived its objection to the untimely nature of his motion.

We DENY Islas-Enriquez’s petition for review. And we DENY AS MOOT

his motion for summary reversal.