Marco Plaza-Hernandez v. U.S. Attorney General

• Court: Court of Appeals for the Eleventh Circuit
• Decided: March 9, 2020
• Docket: 19-12607
• Status: Unpublished

Opinion

Case: 19-12607 Date Filed: 03/09/2020 Page: 1 of 4

[DO NOT PUBLISH]

IN THE UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT ________________________

No. 19-12607 Non-Argument Calendar ________________________

Agency No. A088-898-112

MARCO PLAZA-HERNANDEZ,

Petitioner,

versus

U.S. ATTORNEY GENERAL,

Respondent.

________________________

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

(March 9, 2020)

Before WILSON, JORDAN, and ANDERSON, Circuit Judges.

PER CURIAM: Case: 19-12607 Date Filed: 03/09/2020 Page: 2 of 4

Marco Plaza-Hernandez seeks review of the final order of the Board of

Immigration Appeals (“BIA”) affirming the Immigration Judge’s (“IJ”) denial of

his motion to sua sponte reopen his removal proceedings. On appeal, he argues

that the BIA failed to consider the facts surrounding his failure to appear at his

initial hearing, misconstrued the circumstances that made him eligible for a new

type of relief from removal, and misapplied its precedent regarding what

constitutes extraordinary circumstances warranting reopening. The government

responds that we lack jurisdiction to review the BIA’s refusal to exercise its

authority to sua sponte reopen removal proceedings. Plaza-Hernandez replies that

(1) we have jurisdiction under the Administrative Procedures Act (“APA”) to set

aside arbitrary and capricious agency decisions and (2) he was denied due process

because of the BIA’s misapplication of its precedent.

We review our subject-matter jurisdiction de novo. Amaya-Artunduaga v.

U.S. Att’y Gen., 463 F.3d 1247, 1250 (11th Cir. 2006). Pursuant to § 242(a)(1) of

the Immigration and Nationality Act (“INA”), we may review final orders of

removal. INA § 242(a)(1), 8 U.S.C. § 1252(a)(1). However, this section does not

apply to decisions committed by statute to the discretion of the Attorney General or

Secretary of Homeland Security. INA § 242(a)(2)(B), 8 U.S.C. § 1252(a)(2)(B).

Similarly, though ordinarily the APA provides that a reviewing court may set aside

agency actions that are arbitrary or capricious, this judicial-review provision does

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not apply where an agency’s action is committed to its discretion by law. 5 U.S.C.

§§ 701(a)(2), 706(2)(A).

We lack jurisdiction to review the BIA’s refusal to exercise its authority to

sua sponte reopen proceedings because it is committed to the BIA’s discretion by

law. Lenis v. U.S. Att’y Gen., 525 F.3d 1291, 1293–94 (11th Cir. 2008) (discussing

§ 701(a)(2)); 8 C.F.R. § 1003.2(a). We have suggested that we may have

jurisdiction to consider constitutional claims relating to the BIA’s refusal to

exercise its discretionary authority to sua sponte reopen proceedings, Lenis, 525

F.3d at 1294 n.7, but our jurisdiction does not extend to our review of solely legal

claims, Butka v. U.S. Att’y Gen., 827 F.3d 1278, 1285–86 (11th Cir. 2016).

We lack jurisdiction to consider claims that were not raised before the BIA.

Amaya-Artunduaga, 463 F.3d at 1250. A due process claim that a petitioner was

denied a full and a fair hearing “is precisely the kind of procedural error which

requires exhaustion.” Id. at 1251. And a petitioner abandons an argument where

he raises it for the first time in his reply brief. See Al Najjar v. Ashcroft, 257 F.3d

1262, 1282 n.12 (11th Cir. 2001).

Accordingly, we conclude that we lack jurisdiction to review the BIA’s

refusal to exercise its sua sponte authority to reopen Plaza-Hernandez’s

proceedings. Although he argues that the APA allows us to set aside an arbitrary

and capricious decision, our precedent provides that the authority to sua sponte

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reopen proceedings is committed to the BIA’s discretion by law, so the APA does

not provide us with jurisdiction to review that decision. Although

Plaza-Hernandez also argues that he was denied due process, (1) we lack

jurisdiction to consider that claim because he did not raise it before the BIA,

Amaya-Artunduaga, 463 F.3d at 1250–51; and (2) he abandoned that claim by

failing to raise it in his initial brief, see Al Najjar, 257 F.3d at 1282 n.12. To the

extent that he argues that the BIA made legal errors in misapplying its precedent,

we lack jurisdiction to address that claim because it is not a constitutional claim.

Accordingly, we dismiss his petition for lack of jurisdiction.

DISMISSED.