Juan Jose Gushiken Ayala v. U.S. Attorney General

Opinion

[DO NOT PUBLISH]

In the

United States Court of Appeals For the Eleventh Circuit

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No. 21-12545

Non-Argument Calendar

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JUAN JOSE GUSHIKEN AYALA, Petitioner,

versus U.S. ATTORNEY GENERAL,

Respondent.

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Petition for Review of a Decision of the Board of Immigration Appeals Agency No. A087-133-525

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2 Opinion of the Court 21-12545

Before JILL PRYOR, BRANCH, and MARCUS, Circuit Judges. PER CURIAM:

Juan Gushiken Ayala appeals the Board of Immigration Appeals ’s (“BIA”) denial of his motion to reopen his removal proceedings pursuant to its sua sponte authority. But because the BIA’s decision whether to reopen sua sponte is committed to the agency’s discretion, we dismiss Ayala’s petition for review for lack of jurisdiction.

We review de novo our own subject matter jurisdiction.

Jeune v. U.S. Att’y Gen., 810 F.3d 792, 799 (11th Cir. 2016). Generally , when an appellant fails to offer argument on an issue, that issue is deemed abandoned. Lapaix v. U.S. Att’y Gen., 605 F.3d 1138, 1145 (11th Cir. 2010). Likewise, arguments not raised in a petitioner ’s initial brief are deemed abandoned. Timson v. Sampson, 518 F.3d 870, 874 (11th Cir. 2008).

The Immigration and Nationality Act (“INA”) permits a non-citizen to file one motion to reopen removal proceedings. See 8 U.S.C. § 1229a(c)(7)(A); 8 C.F.R. § 1003.2(c)(2). Subject to certain statutory exceptions and equitable tolling, a motion to reopen must be filed within 90 days of the entry of a final administrative removal order. 8 U.S.C. § 1229a(c)(7)(C)(i); 8 C.F.R. § 1003.2(c)(2); Butka v. U.S. Att’y Gen., 827 F.3d 1278, 1283 (11th Cir. 2016). We have jurisdiction to review the BIA’s denial of a petitioner’s motion for statutory reopening. Butka, 827 F.3d at 1283.

21-12545 Opinion of the Court 3

The BIA also has the authority to reopen removal proceedings sua sponte at any time. Id.; 8 C.F.R. § 1003.2(a). No statute expressly authorizes the BIA to reopen cases sua sponte; rather, the regulation at issue derives from a statute that grants general authority over immigration and nationalization matters to the Attorney General and sets no standard for the Attorney General’s decision -making in this context. Lenis v. U.S. Att’y Gen., 525 F.3d 1291, 1293 (11th Cir. 2008). A non-citizen can file a written motion with the BIA asking it to exercise its sua sponte authority to reopen removal proceedings. Butka, 827 F.3d at 1283; 8 C.F.R. § 1003.2(a). Whether to grant or deny such a motion is entirely within the BIA’s discretion. Lenis, 525 F.3d at 1293–94. Unlike the denial of statutory reopening, we lack jurisdiction to review the BIA’s denial of a motion to reopen pursuant to its sua sponte authority because such a determination is committed to agency discretion by law and there is no meaningful standard against which to judge the agency’s exercise of discretion. Id.; Butka, 827 F.3d at 1285–86. We have expressly left open the question of whether we may exercise jurisdiction over constitutional claims related to an underlying request for sua sponte reopening. Butka, 827 F.3d at 1285 n.6 (citing Lenis, 525 F.3d at 1294 n.7). In asserting a constitutional claim, a petitioner must allege at least a colorable constitutional violation. Arias v. U.S. Att’y Gen., 482 F.3d 1281, 1284 (11th Cir. 2007).

Due process claims must assert a deprivation of a constitutionally protected liberty or property interest. Bing Quan Lin v. U.S. Att’y Gen., 881 F.3d 860, 868–69 (11th Cir. 2018). There is no 4 Opinion of the Court 21-12545

constitutionally protected interest in purely discretionary forms of relief -- including motions to reopen. Id. at 869; Scheerer v. U.S. Att’y Gen., 513 F.3d 1244, 1253 (11th Cir. 2008).

Here, Ayala’s motion to the BIA asked that it exercise its discretion to sua sponte reopen his cancellation of removal proceedings under 8 C.F.R. § 1103.2(c). 1 However, we lack jurisdiction over this claim. See Lenis, 525 F.3d at 1294 (holding that we lack jurisdiction to review the BIA’s denial of a motion to reopen sua sponte). And while Ayala argues in his reply brief that he brought both legal claims and a constitutional claim premised on due process violations, his initial brief before us does not develop a due process claim nor any other constitutional claim. Therefore, he abandoned any arguments concerning a constitutional claim and we decline to consider them. Timson, 518 F.3d at 874. In any event, Ayala cannot establish a colorable due process claim because , as our case law has established, he possesses no constitutionally protected liberty or property interest in a motion to reopen sua sponte. See Bing Quan Lin, 881 F.3d at 868–69; Scheerer, 513 F.3d at 1253.

PETITION DISMISSED.

1 Indeed, Ayala’s motion only invoked the BIA’s sua sponte authority and made no refence to statutory reopening, nor did it cite to the statute, 8 U.S.C. § 1229a(c)(7)(A). As a result, Ayala abandoned any claim that his motion should have been construed as one seeking statutory reopening. See Lapaix, 605 F.3d at 1145.