Luis Alfonso Duarte-Rodriguez v. U.S. Attorney General

• Court: Court of Appeals for the Eleventh Circuit
• Decided: July 27, 2021
• Docket: 20-12948
• Status: Unpublished

Opinion

USCA11 Case: 20-12948 Date Filed: 07/27/2021 Page: 1 of 5

[DO NOT PUBLISH]

IN THE UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT ________________________

No. 20-12948 Non-Argument Calendar ________________________

Agency No. A073-611-873

LUIS ALFONSO DUARTE-RODRIGUEZ,

Petitioner,

versus

U.S. ATTORNEY GENERAL,

Respondent. ________________________

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

(July 27, 2021)

Before JILL PRYOR, LUCK, and BRASHER, Circuit Judges.

PER CURIAM:

Luis Alfonso Duarte-Rodriguez seeks review of a decision by the Board of

Immigration Appeals (the “BIA”) denying his motion for sua sponte USCA11 Case: 20-12948 Date Filed: 07/27/2021 Page: 2 of 5

reconsideration. Upon consideration, we dismiss his petition for a lack of

jurisdiction.

I.

Duarte-Rodriguez is a native and citizen of Colombia who entered the United

States in 1993 without admission or parole. Several years later, the Department of

Homeland Security issued a notice to appear that charged Duarte-Rodriguez as

removable under the Immigration and Nationality Act. Duarte-Rodriguez eventually

applied for cancellation of removal and adjustment of status for certain non-

permanent residents. In his application, he asserted that his removal would result in

exceptional and extremely unusual hardship to his daughter, who was an American

citizen. The immigration judge denied Duarte-Rodriguez’s application. The

immigration judge concluded that Duarte-Rodriguez’s daughter would not suffer

exceptional and extremely unusual hardship because she was healthy and adaptable

and would be able to receive adequate education if she left the country with her

father.

Duarte-Rodriguez appealed the denial of his application to the BIA, which

affirmed the immigration judge’s decision. Nearly four years later, Duarte-

Rodriguez moved to reopen his removal proceedings based on previously

unavailable evidence. He attached to his motion a mental health evaluation

diagnosing his daughter with certain clinical disorders. The BIA denied his motion

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on the grounds that it was untimely under 8 C.F.R. § 1003.2(c)(3), that no exception

to the filing deadline applied, and that there was no truly exceptional situation

present to warrant sua sponte reopening of the case.

Duarte-Rodriguez petitioned this Court for review of the BIA’s denial of his

motion to reopen, but it dismissed his petition for lack of jurisdiction. Duarte-

Rodriguez then moved the BIA to reconsider its denial of his motion to reopen. The

BIA denied his motion for reconsideration, and Duarte-Rodriguez petitioned this

Court for review of the BIA’s denial. The United States Attorney General moved to

dismiss Duarte-Rodriguez’s petition for lack of jurisdiction, and this Court ordered

that the motion to dismiss be carried with the case.

II.

We review our subject-matter jurisdiction over a petition from the BIA de

novo. See Bing Quan Lin v. U.S. Att’y Gen., 881 F.3d 860, 866 (11th Cir. 2018)

(citing Amaya–Artunduaga v. U.S. Att’y Gen., 463 F.3d 1247, 1250 (11th Cir.

2006)).

III.

Duarte-Rodriguez argues that in denying his motion for reconsideration, the

BIA (1) abused its discretion in rejecting the arguments raised in his motion to

reopen and his motion for reconsideration, (2) misunderstood the basis of his motion

for reconsideration and did not afford reasoned consideration to the new evidence

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that he had offered, and (3) violated his constitutional due process right to receive a

full and fair hearing. In response, the Attorney General reiterates its position from

its motion to dismiss and argues that we lack jurisdiction over Duarte-Rodriguez’s

petition. We agree with the Attorney General.

“The BIA has the authority to reopen removal proceedings sua sponte at any

time,” and “[a] petitioner can file a written motion in the BIA” requesting it “to

exercise its sua sponte authority.” Butka v. U.S. Att’y Gen., 827 F.3d 1278, 1283

(11th Cir. 2016) (citing 8 C.F.R. § 1003.2(a)). But we “lack[] jurisdiction to review

a BIA decision denying a petitioner’s motion for sua sponte reopening,” even where

a petitioner alleges legal error. Id. at 1283, 1285–86 (citing Lenis v. U.S. Att’y Gen.,

525 F.3d 1291, 1292, 1294 (11th Cir. 2008)). This jurisdictional limitation also

applies to our review of the BIA’s denial of a petitioner’s motion for sua sponte

reconsideration. See 8 C.F.R. § 1003.2(a) (addressing motions to reopen and motions

to reconsider together and subjecting them to the same procedural requirements).

However, we have noted that there may be a possible exception to this

jurisdictional limitation for constitutional claims. See Butka, 827 F.3d at 1285–86

(citing Lenis, 525 F.3d at 1294 & n.7). Even then, a petitioner must allege “at least

a colorable constitutional violation,” lest it create “jurisdiction that Congress chose

to remove simply by cloaking an abuse of discretion argument in constitutional

garb.” See Arias v. U.S. Att’y Gen., 482 F.3d 1281, 1284 (11th Cir. 2007). “For a

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constitutional claim to be colorable, the alleged violation need not be substantial, but

the claim must have some possible validity.” Id. at 1284 n.2. (internal quotation

marks omitted).

Here, the BIA denied Duarte-Rodriguez’s motion for sua sponte

reconsideration, and his sole allegation of a constitutional violation—that the BIA

violated his constitutional due process right to receive a full and fair hearing—is not

colorable. We have held that “[t]he decision to grant or deny a motion to reopen or

a motion to reconsider” is within the BIA’s “very broad” discretion. Scheerer v. U.S.

Att’y Gen., 513 F.3d 1244, 1253 (11th Cir. 2008). For that reason, a petitioner cannot

prevail on a due process claim seeking reopening or reconsideration “because he has

no constitutionally protected interest in purely discretionary forms of relief.” Id.

Consequently, Duarte-Rodriguez has failed to allege any colorable constitutional

violations on appeal, and we therefore lack jurisdiction to review the BIA’s decision.

IV.

For the reasons stated above, we GRANT the Attorney General’s motion to

dismiss and DISMISS Duarte-Rodriguez’s petition. All pending motions are

DENIED as moot.