Jean Carlo Espejo-Davila v. U.S. Attorney General

• Court: Court of Appeals for the Eleventh Circuit
• Decided: January 28, 2020
• Docket: 19-12178
• Status: Unpublished

Opinion

Case: 19-12178 Date Filed: 01/28/2020 Page: 1 of 4

[DO NOT PUBLISH]

IN THE UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT ________________________

No. 19-12178 Non-Argument Calendar ________________________

Agency No. A089-828-905

JEAN CARLO ESPEJO-DAVILA,

Petitioner,

versus

U.S. ATTORNEY GENERAL,

Respondent.

________________________

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

(January 28, 2020)

Before GRANT, LUCK, and ANDERSON, Circuit Judges.

PER CURIAM: Case: 19-12178 Date Filed: 01/28/2020 Page: 2 of 4

Jean Espejo-Davila, a native and citizen of Peru, petitions us to review the

Board of Immigration’s (“BIA”) order denying his untimely and number-barred

motion to reopen his removal proceedings. Espejo-Davila timely filed his first

motion to reopen in April 2015, which the BIA denied. In the instant motion to

reopen, Espejo-Davila argued that Pereira v. Sessions, 138 S. Ct. 2105 (2018), was

a fundamental change in law that warranted a sua sponte reopening of his removal

proceedings. The BIA denied Espejo-Davila’s instant motion to reopen, finding

that Pereira did not provide a basis for sua sponte reopening his case.

We review the BIA’s denial of a motion to reopen for an abuse of discretion.

Al Najjar v. Ashcroft, 257 F.3d 1262, 1302 (11th Cir. 2001). Under this deferential

standard of review, we examine whether the discretion exercised was arbitrary or

capricious. Zhang v. U.S. Att’y Gen., 572 F.3d 1316, 1319 (11th Cir. 2009).

However, we are obligated to review the existence of subject matter jurisdiction

sua sponte where it may be lacking. Cadet v. Bulger, 377 F.3d 1173, 1179 (11th

Cir. 2004). Such review is conducted de novo. Gonzalez-Oropeza v. U.S. Att’y

Gen., 321 F.3d 1331, 1332 (11th Cir. 2003).

Although the BIA may sua sponte reopen removal proceedings at any time,

we do not have jurisdiction to review the BIA’s decision not to reopen an alien’s

case sua sponte. Lenis v. U.S. Att’y Gen., 525 F.3d 1291, 1294 (11th Cir. 2008);

8 C.F.R. § 1003.2(a). However, if a petitioner alleges “constitutional claims

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related to the BIA’s decision not to exercise its sua sponte power to reopen,” then

we “may have jurisdiction” over those claims. Lenis, 525 F.3d at 1294 n.7. A

petitioner must allege at least a colorable constitutional violation for us to retain

jurisdiction pursuant to 8 U.S.C. § 1252(a)(2)(D). Arias v. U.S. Att’y Gen., 482

F.3d 1281, 1284 (11th Cir. 2007).

A party may file only one motion to reopen his removal proceedings, and

that motion “shall state the new facts that will be proven at a hearing to be held if

the motion is granted, and shall be supported by affidavits or other evidentiary

material.” INA § 240(c)(7)(A), (B), 8 U.S.C. § 1229a(c)(7)(A), (B). Generally, a

“motion to reopen shall be filed within 90 days of the date of entry of a final

administrative order of removal,” or before September 30, 1996, whichever is later,

subject to certain exceptions. INA § 240(c)(7)(C)(i), 8 U.S.C. § 1229a(c)(7)(C)(i).

The time and numerical limitations do not apply where: (1) the alien seeks asylum

or withholding of removal based on changed country conditions; (2) the rule for

battered spouses, children, or parents applies; (3) the motion was jointly filed by

the alien and the government; or (4) the government seeks termination of asylum.

INA § 240(c)(7)(C), 8 U.S.C. § 1229a(c)(7)(C); see also 8 C.F.R. § 1003.2(3).

In this case, we do not have jurisdiction to review the BIA’s decision not to

reopen Espejo-Davila’s removal proceedings sua sponte. This reflects the general

rule that we cannot exercise jurisdiction over a decision to not reopen removal

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proceedings sua sponte unless there are constitutional claims concerning the BIA’s

decision. See Lenis, 525 F.3d at 1294 n.7. Though Espejo-Davila argues that

Pereira was a fundamental change in the law that warranted sua sponte reopening,

the BIA concluded that there was no change in law that would support sua sponte

reopening. Espejo-Davila points to no colorable constitutional infirmities with the

BIA’s decision not to reopen his proceedings sua sponte and therefore, we cannot

exercise jurisdiction over it. 1

PETITION DISMISSED.

1 Indeed, the only issue raised by Espejo-Davila on appeal is an issue of statutory interpretation relating to when the stop-time rule is triggered. In the absence of a colorable constitutional claim, we have no jurisdiction. 4