Marcos Araujo v. U.S. Attorney General

• Court: Court of Appeals for the Eleventh Circuit
• Decided: September 28, 2020
• Docket: 20-10537
• Status: Unpublished

Opinion

Case: 20-10537 Date Filed: 09/28/2020 Page: 1 of 5

[DO NOT PUBLISH]

IN THE UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT ________________________

No. 20-10537 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 ________________________

(September 28, 2020)

Before WILSON, JILL PRYOR and BRASHER, Circuit Judges.

PER CURIAM:

Marcos and Fernanda Araujo (“the Araujos”) appeal the order of the Board

of Immigration Appeals (“BIA”) denying their motion to reopen proceedings and Case: 20-10537 Date Filed: 09/28/2020 Page: 2 of 5

to reconsider the agency’s July 10, 2013 denial of their application for cancellation

of removal. The government has moved for summary denial in part, to dismiss for

lack of jurisdiction in part, and to stay the briefing schedule.

Summary disposition is appropriate either where time is of the essence, such

as “situations where important public policy issues are involved or those where

rights delayed are rights denied,” or where “the position of one of the parties is

clearly right as a matter of law so that there can be no substantial question as to the

outcome of the case, or where, as is more frequently the case, the appeal is

frivolous.” Groendyke Transp., Inc. v. Davis, 406 F.2d 1158, 1162 (5th Cir. 1969).

We review the BIA’s denial of a motion for reconsideration and the denial of

a motion to reopen for abuse of discretion. Jiang v. U.S. Atty Gen., 568 F.3d 1252,

1256 (11th Cir. 2009); Assa’ad v. U.S. Atty Gen., 332 F.3d 1321, 1341 (11th Cir.

2003). Our review is limited to determining whether the BIA exercised its

discretion in an “arbitrary or capricious” manner. Ali v. U.S. Atty Gen., 443 F.3d

804, 808 (11th Cir. 2006). “The moving party bears a heavy burden as motions to

reopen are disfavored, especially in removal proceedings.” Zhang v. U.S. Atty

Gen., 572 F.3d 1316, 1319 (11th Cir. 2009) (internal citations omitted). We lack

jurisdiction to review the BIA’s decision denying sua sponte reopening unless the

denial gives rise to a colorable constitutional claim. Bing Quan Lin v. U.S. Atty

Gen., 881 F.3d 860, 871 (11th Cir. 2018).

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A noncitizen may file only one motion to reopen and one motion to

reconsider. INA §§ 240(c)(7)(A), (c)(6)(A); 8 U.S.C. §§ 1229a(c)(7)(A),

(c)(6)(A). A motion to reconsider must be filed within 30 days of a final

administrative order of removal. INA § 240(c)(6)(B); 8 U.S.C. § 1229a(c)(6)(B).

A motion to reopen must be filed within 90 days of a final administrative order of

removal. INA § 240(c)(7)(C)(i); 8 U.S.C. § 1229a(c)(7)(C)(i). The time and

number limits on motions to reopen do not apply if the basis of the motion is to

apply or reapply for asylum or withholding of removal “based on changed country

conditions arising in the country of nationality . . . , if such evidence is material

and was not available and would not have been discovered or presented at the

previous proceeding.” INA § 240(c)(7)(C)(ii); 8 U.S.C. § 1229a(c)(7)(C)(ii). “An

alien cannot circumvent the requirement of changed country conditions by

demonstrating only a change in [his or her] personal circumstances.” Chen v. U.S.

Atty. Gen., 565 F.3d 805, 809-10 (11th Cir. 2009).

First, there is no substantial question that the BIA did not abuse its discretion

in denying the Araujos’ motion to reopen and for reconsideration as number-barred

and time-barred. The Araujos do not dispute, and the record clearly establishes,

that they have filed more than one motion to reopen and motion for

reconsideration, which is not permitted. See INA §§ 240(c)(7)(A), (c)(6)(A); 8

U.S.C. §§ 1229a(c)(7)(A), (c)(6)(A). Further, it is clear that the Araujos untimely

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filed their motion as the BIA issued its merits decision on July 10, 2013 and the

Araujos filed the instant motion on October 1, 2018—well after both the 90-day

and 30-day deadlines. Therefore, the BIA did not abuse its discretion in denying

the Araujos motion as number-barred and time-barred. The Araujos argue that the

time and number limits do not apply because the basis of their motion was the

changed country conditions in Brazil and that the BIA refused to consider the

changed conditions. However, the BIA fully addressed this issue, in its denial of

the instant petition and the denial of the Araujos’ fifth motion to reopen, and did

not abuse its discretion in finding that the country conditions did not meet the

statutory requirement because the evidence of the lower standard of living,

recession, unemployment, and lack of educational opportunities was not material.

Second, we lack jurisdiction to consider whether the BIA erred in declining

to use its authority to sua sponte reopen the Araujos’ removal proceeding. See

Bing Quan Lin, 881 F.3d at 871. Although the Araujos raised due process claims,

in both their motion before the BIA and their appeal, they failed to support those

claims with sufficient detail or argument to raise a “colorable constitutional claim.”

See id. Further, we have already held that we lack jurisdiction to consider the

BIA’s decision declining to use its sua sponte authority to reopen the Araujos’ case

because the Araujos failed to raise colorable constitutional claims. See Araujo v.

U.S. Atty. Gen. (“Araujo I”), No. 13-15489, slip op. at 5 (11th Cir. Aug. 19, 2014);

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Araujo v. U.S. Atty. Gen. (“Araujo II”), No. 15-10910, slip op. at 5 (11th Cir. Sept.

24, 2015); Araujo v. U.S. Atty. Gen. (“Araujo III”), No. 16-10562, slip op. at 2

(11th Cir. Jan. 9, 2017); Araujo v. U.S. Atty. Gen., (“Araujo IV”), 730 F. App’x.

855, 858 (11th Cir. 2018); Araujo v. U.S. Atty. Gen., (“Araujo V”), 756 F. App’x.

865, 868 (11th Cir. 2018).

Therefore, because there is no substantial question that the Araujos’ motion

is time- and number-barred and because we lack jurisdiction to consider whether

the BIA erred in declining to exercise its sua sponte authority to reopen the case,

we GRANT the government’s motion for summary denial in part and the

government’s motion to dismiss for lack of jurisdiction in part, and we DENY as

moot the government’s motion to stay the briefing schedule. See Groendyke

Transp., Inc., 406 F.2d at 1162.