Case: 18-10987 Date Filed: 11/21/2018 Page: 1 of 6
[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT ________________________
No. 18-10987 Non-Argument Calendar ________________________
Agency No. A200-849-634
MARCOS ARAUJO, FERNANDA GOMES ARAUJO,
Petitioners,
versus
U.S. ATTORNEY GENERAL,
Respondent.
________________________
Petition for Review of a Decision of the Board of Immigration Appeals ________________________
(November 21, 2018)
Before WILSON, BRANCH, and JULIE CARNES, Circuit Judges.
PER CURIAM: Case: 18-10987 Date Filed: 11/21/2018 Page: 2 of 6
Marcos Araujo and Fernando Gomes Araujo, proceeding pro se, seek review
of the Board of Immigration Appeals’ (BIA) denial of their fifth motion to reopen
removal proceedings. The BIA denied the Araujos’ four previous motions, and we
dismissed their petitions for review for lack of jurisdiction. See Araujo v. U.S.
Att’y Gen. (Araujo I), No. 13-15489, slip op. at 5 (11th Cir. Aug. 19, 2014); Araujo
v. U.S. Att’y Gen. (Araujo II), No. 15-10910, slip op. at 5 (11th Cir. Sept. 24,
2015); Araujo v. U.S. Att’y Gen. (Araujo III), No. 16-10562, slip op. at 2 (11th Cir.
Jan. 9, 2017); Araujo v. U.S. Att’y Gen. (Araujo IV), No. 17-12249, slip op. at 7
(11th Cir. Apr. 19, 2018). In their instant petition for review, the Araujos
challenge the BIA’s denial of their fifth and most recent motion to reopen and
reconsider. They also challenge the BIA’s order dismissing their appeal of the
Immigration Judge’s order of removal, and the BIA’s denial of their first four
motions to reopen and reconsider. To the extent that we lack jurisdiction, the
Araujos’ petition for review is dismissed, and is otherwise denied.
I.
The BIA’s denial of motions to reconsider and motions to reopen are
reviewed for abuse of discretion. Calle v. U.S. Att’y Gen., 504 F.3d 1324, 1328
(11th Cir. 2007); Jiang v. U.S. Att’y Gen., 568 F.3d 1252, 1256 (11th Cir. 2009).
We are obligated, however, to review de novo the existence of subject matter
jurisdiction sua sponte where it may be lacking. Cadet v. Bulger, 377 F.3d 1173,
2 Case: 18-10987 Date Filed: 11/21/2018 Page: 3 of 6
1179 (11th Cir. 2004). Pro se pleadings are liberally construed. Lorisme v. I.N.S.,
129 F.3d 1441, 1444 n.3 (11th Cir. 1997).
The Araujos’ fifth motion to reopen and reconsider is both time- and
number-barred. From the date of entry of the final order of removal, a party has
thirty days to file a motion to reconsider, 8 U.S.C. § 1229a(c)(6)(B), and ninety
days to file a motion to reopen, 8 U.S.C. § 1229a(c)(7)(C)(i). Generally, a party
may only file one motion to reconsider, 8 U.S.C. §1229a(c)(6)(A), and one motion
to reopen, 8 U.S.C. § 1229a(c)(7)(A).
While there are exceptions to the time and number limitations, none of them
apply to the Araujos’ motion to reopen removal proceedings. The limitations do
not apply to motions to reopen if the party is seeking asylum and can demonstrate
“changed country conditions arising in the country of nationality or the country to
which removal has been ordered, if such evidence is material and was not available
and would not have been discovered or presented at the previous proceeding.” 8
U.S.C. § 1229a(c)(7)(C)(ii). The BIA can reject a motion to reopen where the
petitioner failed to introduce such evidence. 8 C.F.R. § 1003.23(b)(3); Najjar v.
Ashcroft, 257 F.3d 1262, 1302 (11th Cir. 2001). The Araujos are not seeking to
reopen an application for asylum, and thus cannot take advantage of this exception.
The Araujos’ motion asked the BIA to reopen its denial of their application for
cancellation of removal. Moreover, the Araujos’ evidence of changed country
3 Case: 18-10987 Date Filed: 11/21/2018 Page: 4 of 6
conditions in Brazil was either considered and rejected by the BIA, or was
available at the time of the prior proceeding.
The Araujos filed their fifth motion to reopen, which the BIA construed as
also seeking reconsideration, more than four years after the entry of the Araujos’
final order of removal. The BIA thus did not abuse its discretion in denying the
motion as both time- and number-barred.
II.
We lack jurisdiction over the Araujos’ other claims. First, the Attorney
General may cancel the removal of a non-permanent resident who meets certain
requirements, including establishing that removal would cause “exceptional and
extremely unusual hardship to the alien’s spouse, parent, or child, who is a citizen
of the United States or an alien lawfully admitted for permanent residence.” 8
U.S.C. § 1229b(b)(1)(D). But our “jurisdiction to review the BIA’s discretionary
decisions is limited by statute,” Jimenez-Galicia v. U.S. Att’y Gen., 690 F.3d 1207,
1209 (11th Cir. 2012), including the unusual hardship exception under § 1229b.
See 8 U.S.C. § 1252(a)(2)(B)(i); Martinez v. U.S. Att’y Gen., 446 F.3d 1219, 1221–
23; Guzman-Munoz v. U.S. Att’y Gen., 733 F.3d 1311, 1313–14 (11th Cir. 2013).
Second, 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 do so. 8
C.F.R. § 1003.2(a); Lenis v. U.S. Att’y Gen., 525 F.3d 1291, 1294 (11th Cir. 2008).
4 Case: 18-10987 Date Filed: 11/21/2018 Page: 5 of 6
And while we “may have jurisdiction over constitutional claims related to the
BIA’s decision not to exercise its sua sponte power” to reopen, Lenis, 525 F.3d at
1294 n.7, the Araujos have not raised a colorable constitutional violation. See
Alhuay v. U.S. Att’y Gen., 661 F.3d 534, 549–50 (11th Cir. 2011). A claim of
failure to receive discretionary relief, such as the grant of a motion to reopen, does
not amount to a colorable due process claim. See Sheerer v. U.S. Att’y Gen., 513
F.3d 1244, 1253 (11th Cir. 2008).
Third, we lack jurisdiction to review of the BIA’s final order of removal.
“[A] petition for review must be filed not later than 30 days after the date of the
final order of removal.” 8 U.S.C. § 1252(b)(1). The statutory time limit for filing
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Case: 18-10987 Date Filed: 11/21/2018 Page: 1 of 6
[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT ________________________
No. 18-10987 Non-Argument Calendar ________________________
Agency No. A200-849-634
MARCOS ARAUJO, FERNANDA GOMES ARAUJO,
Petitioners,
versus
U.S. ATTORNEY GENERAL,
Respondent.
________________________
Petition for Review of a Decision of the Board of Immigration Appeals ________________________
(November 21, 2018)
Before WILSON, BRANCH, and JULIE CARNES, Circuit Judges.
PER CURIAM: Case: 18-10987 Date Filed: 11/21/2018 Page: 2 of 6
Marcos Araujo and Fernando Gomes Araujo, proceeding pro se, seek review
of the Board of Immigration Appeals’ (BIA) denial of their fifth motion to reopen
removal proceedings. The BIA denied the Araujos’ four previous motions, and we
dismissed their petitions for review for lack of jurisdiction. See Araujo v. U.S.
Att’y Gen. (Araujo I), No. 13-15489, slip op. at 5 (11th Cir. Aug. 19, 2014); Araujo
v. U.S. Att’y Gen. (Araujo II), No. 15-10910, slip op. at 5 (11th Cir. Sept. 24,
2015); Araujo v. U.S. Att’y Gen. (Araujo III), No. 16-10562, slip op. at 2 (11th Cir.
Jan. 9, 2017); Araujo v. U.S. Att’y Gen. (Araujo IV), No. 17-12249, slip op. at 7
(11th Cir. Apr. 19, 2018). In their instant petition for review, the Araujos
challenge the BIA’s denial of their fifth and most recent motion to reopen and
reconsider. They also challenge the BIA’s order dismissing their appeal of the
Immigration Judge’s order of removal, and the BIA’s denial of their first four
motions to reopen and reconsider. To the extent that we lack jurisdiction, the
Araujos’ petition for review is dismissed, and is otherwise denied.
I.
The BIA’s denial of motions to reconsider and motions to reopen are
reviewed for abuse of discretion. Calle v. U.S. Att’y Gen., 504 F.3d 1324, 1328
(11th Cir. 2007); Jiang v. U.S. Att’y Gen., 568 F.3d 1252, 1256 (11th Cir. 2009).
We are obligated, however, to review de novo the existence of subject matter
jurisdiction sua sponte where it may be lacking. Cadet v. Bulger, 377 F.3d 1173,
2 Case: 18-10987 Date Filed: 11/21/2018 Page: 3 of 6
1179 (11th Cir. 2004). Pro se pleadings are liberally construed. Lorisme v. I.N.S.,
129 F.3d 1441, 1444 n.3 (11th Cir. 1997).
The Araujos’ fifth motion to reopen and reconsider is both time- and
number-barred. From the date of entry of the final order of removal, a party has
thirty days to file a motion to reconsider, 8 U.S.C. § 1229a(c)(6)(B), and ninety
days to file a motion to reopen, 8 U.S.C. § 1229a(c)(7)(C)(i). Generally, a party
may only file one motion to reconsider, 8 U.S.C. §1229a(c)(6)(A), and one motion
to reopen, 8 U.S.C. § 1229a(c)(7)(A).
While there are exceptions to the time and number limitations, none of them
apply to the Araujos’ motion to reopen removal proceedings. The limitations do
not apply to motions to reopen if the party is seeking asylum and can demonstrate
“changed country conditions arising in the country of nationality or the country to
which removal has been ordered, if such evidence is material and was not available
and would not have been discovered or presented at the previous proceeding.” 8
U.S.C. § 1229a(c)(7)(C)(ii). The BIA can reject a motion to reopen where the
petitioner failed to introduce such evidence. 8 C.F.R. § 1003.23(b)(3); Najjar v.
Ashcroft, 257 F.3d 1262, 1302 (11th Cir. 2001). The Araujos are not seeking to
reopen an application for asylum, and thus cannot take advantage of this exception.
The Araujos’ motion asked the BIA to reopen its denial of their application for
cancellation of removal. Moreover, the Araujos’ evidence of changed country
3 Case: 18-10987 Date Filed: 11/21/2018 Page: 4 of 6
conditions in Brazil was either considered and rejected by the BIA, or was
available at the time of the prior proceeding.
The Araujos filed their fifth motion to reopen, which the BIA construed as
also seeking reconsideration, more than four years after the entry of the Araujos’
final order of removal. The BIA thus did not abuse its discretion in denying the
motion as both time- and number-barred.
II.
We lack jurisdiction over the Araujos’ other claims. First, the Attorney
General may cancel the removal of a non-permanent resident who meets certain
requirements, including establishing that removal would cause “exceptional and
extremely unusual hardship to the alien’s spouse, parent, or child, who is a citizen
of the United States or an alien lawfully admitted for permanent residence.” 8
U.S.C. § 1229b(b)(1)(D). But our “jurisdiction to review the BIA’s discretionary
decisions is limited by statute,” Jimenez-Galicia v. U.S. Att’y Gen., 690 F.3d 1207,
1209 (11th Cir. 2012), including the unusual hardship exception under § 1229b.
See 8 U.S.C. § 1252(a)(2)(B)(i); Martinez v. U.S. Att’y Gen., 446 F.3d 1219, 1221–
23; Guzman-Munoz v. U.S. Att’y Gen., 733 F.3d 1311, 1313–14 (11th Cir. 2013).
Second, 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 do so. 8
C.F.R. § 1003.2(a); Lenis v. U.S. Att’y Gen., 525 F.3d 1291, 1294 (11th Cir. 2008).
4 Case: 18-10987 Date Filed: 11/21/2018 Page: 5 of 6
And while we “may have jurisdiction over constitutional claims related to the
BIA’s decision not to exercise its sua sponte power” to reopen, Lenis, 525 F.3d at
1294 n.7, the Araujos have not raised a colorable constitutional violation. See
Alhuay v. U.S. Att’y Gen., 661 F.3d 534, 549–50 (11th Cir. 2011). A claim of
failure to receive discretionary relief, such as the grant of a motion to reopen, does
not amount to a colorable due process claim. See Sheerer v. U.S. Att’y Gen., 513
F.3d 1244, 1253 (11th Cir. 2008).
Third, we lack jurisdiction to review of the BIA’s final order of removal.
“[A] petition for review must be filed not later than 30 days after the date of the
final order of removal.” 8 U.S.C. § 1252(b)(1). The statutory time limit for filing
a petition for review in an immigration proceeding is mandatory, jurisdictional, and
not subject to equitable tolling. Chao Lin v. U.S. Att’y Gen., 677 F.3d 1043, 1045
(11th Cir. 2012). A motion to reopen and reconsider does not toll the time period
to petition for review of the underlying order. Dakane v. U.S. Att’y Gen., 399 F.3d
1269, 1272 n.3 (11th Cir. 2005). We lack jurisdiction to review the final order of
removal because Araujos failed to timely file a petition for review.
Fourth, to the extent that the Araujos seek review of the BIA’s denial of their
four prior motions to reopen and reconsider, we lack jurisdiction. Under the law of
the case doctrine, “findings of fact and conclusions of law by an appellate court are
generally binding in all subsequent proceedings in the same case.” Grayson v.
5 Case: 18-10987 Date Filed: 11/21/2018 Page: 6 of 6
Warden, Comm’r, Ala. Dept. of Corr., 869 F.3d 1204, 1231 (11th Cir. 2017). We
are bound by our prior dismissal of the Araujos’ first four motions to reopen and
reconsider. See Araujo IV, slip op. at 7; Araujo III, slip op. at 5; Araujo II, slip op.
at 5; Araujo I, slip op. at 5.
Accordingly, to the extent that we lack jurisdiction, the Araujos’ petition is
dismissed, and is otherwise denied.
PETITION DISMISSED IN PART, DENIED IN PART.