USCA11 Case: 17-15441 Date Filed: 11/05/2020 Page: 1 of 17
[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT ________________________
Nos. 17-15441, 18-12267, 19-12856 Non-Argument Calendar ________________________
Agency No. A018-796-466
NELSON ZALDIVAR ANZARDO,
Petitioner,
versus
U.S. ATTORNEY GENERAL,
Respondent.
________________________
Petitions for Review of a Decision of the Board of Immigration Appeals ________________________
(November 5, 2020)
Before JILL PRYOR, BRASHER, and BLACK, Circuit Judges.
PER CURIAM: USCA11 Case: 17-15441 Date Filed: 11/05/2020 Page: 2 of 17
Nelson Zaldivar Anzardo, a native and citizen of Cuba, seeks review of three
Board of Immigration Appeals (BIA) decisions from November 2017, May 2018,
and June 2019, denying his motions to reopen his removal proceedings. Zaldivar
asserts the BIA erred in declining to reopen his proceedings under statutory
authority and in declining to reopen his proceedings sua sponte. Zaldivar raises
numerous issues on appeal, which we address in turn. After review, we dismiss his
petitions in part, and deny the petitions in part.
I. DISCUSSION
A. Jurisdiction1
1. Sua Sponte Reopening
Zaldivar contends we may review the BIA’s decision not to exercise its sua
sponte authority and, thus, we may reach the question of whether Lopez v.
Gonzalez, 549 U.S. 47 (2006)—under which he asserts his 2003 convictions for
possession of MDMA, possession of cocaine, and possession of cannabis in
violation of Florida Statutes §§ 893.03(1), 893.03(2), and 893.13(6) would no
longer qualify as aggravated felonies—constitutes an “exceptional circumstance”
justifying the BIA’s exercise of its sua sponte authority to reopen.
1 “We review subject matter jurisdiction de novo.” Martinez v. U.S. Att’y Gen., 446 F.3d 1219, 1221 (11th Cir. 2006) (quotations omitted). We must inquire into subject matter jurisdiction whenever it may be lacking. Chacon-Botero v. U.S. Att’y Gen., 427 F.3d 954, 956 (11th Cir. 2005). 2 USCA11 Case: 17-15441 Date Filed: 11/05/2020 Page: 3 of 17
The BIA has the authority to sua sponte reopen or reconsider removal
proceedings at any time, including upon motion. 8 C.F.R. § 1003.2(a). The
Immigration Judge (IJ) and BIA have the discretion to deny a motion to reopen,
even if the moving party has met its prima facie burden. 8 C.F.R.
§§ 1003.2(a), 1003.23(b)(3). The BIA may sua sponte reopen any case in which it
has rendered a decision. Id. § 1003.2(a). The BIA only exercises its authority to
sua sponte reopen removal proceedings in “exceptional situations.” In re G–D–,
22 I. & N. Dec. 1132, 1133-34 (BIA 1999).
There is no express statutory grant of authority to reopen cases sua sponte.
Lenis v. U.S. Att’y Gen., 525 F.3d 1291, 1293 (11th Cir. 2008). Rather, the
authority derives from 8 U.S.C. § 1103(g)(2), which grants general authority to the
Attorney General over immigration matters. Id. In Lenis, we concluded we lacked
jurisdiction to review the BIA’s decision not to exercise its sua sponte authority to
reopen or reconsider a case under 8 C.F.R. § 1003.2(a) because the regulation did
not provide any “meaningful standard against which to judge the agency’s exercise
of discretion.” Id. at 1292-94. Lenis also suggested an IJ’s decision denying sua
sponte reopening would be unreviewable for the same reasons. See id. at 1294
(citing persuasive authority stating the decision to reopen is within the IJ’s
discretion and that “the IJ is under no obligation to reopen a case” pursuant to his
or her sua sponte authority). We noted an appellate court might have jurisdiction
3 USCA11 Case: 17-15441 Date Filed: 11/05/2020 Page: 4 of 17
over constitutional claims related to the BIA’s decision not to exercise its sua
sponte authority, but we declined to address that question because the petitioner
had not raised a constitutional claim. Id. at 1294 n.7. However, in Butka, we
reaffirmed our holding in Lenis and stated the jurisdiction-preserving section of 8
U.S.C. § 1252(a)(2)(D), for questions of law or constitutional claims, “has no
impact on our jurisdiction to review motions for sua sponte reopening.” Butka v.
U.S. Att’y Gen., 827 F.3d 1278, 1286 n.7 (11th Cir. 2016). We reasoned
§ 1252(a)(2)(D) created an exception to the jurisdiction-stripping provisions
contained only in the Immigration and Nationality Act (INA), whereas our
jurisdiction over sua sponte reopening is limited instead by the Administrative
Procedure Act. Id.
We lack jurisdiction to review Zaldivar’s arguments regarding the BIA’s sua
sponte authority to reopen his case. See Lenis, 525 F.3d at 1292-94. While Lenis
indicated this Court might maintain jurisdiction over constitutional claims relating
to the decision not to reopen sua sponte, Zaldivar has not raised any specific
constitutional claims that relate to the denial of sua sponte reopening. Id. at 1294
n.7. Instead, Zaldivar asserts the BIA erred in finding his case lacked “exceptional
circumstances” because there was a significant development in the law, which he
argues is “incontrovertible” evidence of an exceptional circumstance. He further
argues his case is distinct from that in Lenis or Butka, because he is challenging
4 USCA11 Case: 17-15441 Date Filed: 11/05/2020 Page: 5 of 17
“the very concept that regulation-made authority, in which the executive branch
creates power for itself and bars judicial review may withstand constitutional
scrutiny.” These arguments do not assert a constitutional challenge to the way in
which the BIA made its decision, instead, they assert legal error in the BIA’s
analysis of “exceptional circumstances.” His arguments do not speak to the BIA
running afoul of his constitutional rights, instead, they challenge this Court’s
precedent holding that such decisions are unreviewable. Therefore, we lack
jurisdiction to review the BIA’s exercise of its sua sponte authority.
2. Statutory Reopening
Because Zaldivar was found removable under two grounds listed in the
criminal alien bar, this Court is obligated to consider whether it has jurisdiction to
review the challenges he raises to the BIA’s denial of reopening under its statutory
authority. 8 U.S.C. § 1252(a)(2)(C) (providing we lack jurisdiction to review any
final order of removal against an alien who is removable by reason of having
committed specified criminal offenses, including an aggravated felony under 8
U.S.C. § 1227(a)(2)(A)(iii); or a controlled substance offense under 8 U.S.C.
§ 1227(a)(2)(B)); Patel v. U.S. Att’y Gen., 971 F.3d 1258, 1272 & n.17 (11th Cir.
2020) (en banc) (stating we must consider sua sponte whether we have subject
matter jurisdiction over a petition for review). Notwithstanding the criminal alien
5 USCA11 Case: 17-15441 Date Filed: 11/05/2020 Page: 6 of 17
bar, we have jurisdiction to review any constitutional claims or questions of law
presented in a petition for review. 8 U.S.C. § 1252(a)(2)(D).
We have jurisdiction to review Zaldivar’s challenges to the BIA’s denial of
his motions to reopen under statutory authority. First, Zaldivar’s motions to
reopen challenged both his criminal grounds of removability, and thus, this Court
may review the denial of those motions to determine whether the statutory
conditions for limiting judicial review exist. See Keungne v. U.S. Att’y Gen., 561
F.3d 1281, 1283 (11th Cir. 2009) (explaining when the criminal alien bar is
implicated, we retain jurisdiction to determine whether the statutory conditions for
limiting judicial review exist; that is, we may determine whether a petitioner is
“(1) an alien (2) who is removable (3) based on having committed a disqualifying
offense.” (quotations omitted)). Second, this Court has jurisdiction to review
questions of law, including the application of undisputed facts to a legal standard,
and the issues Zaldivar raises on appeal—equitable tolling, whether his convictions
qualified as controlled substance offenses, and the legal effect of his defective
notice to appear—all concern questions of law. 8 U.S.C. § 1252(a)(2)(D); see
Guerrero-Lasprilla v. Barr, 140 S. Ct. 1062, 1067-68 (2020) (holding the
“questions of law” exception to the criminal alien bar includes issues involving the
application of undisputed or established facts to a legal standard, such as whether a
petitioner had shown sufficient due diligence to equitably toll the deadline for
6 USCA11 Case: 17-15441 Date Filed: 11/05/2020 Page: 7 of 17
filing a motion to reopen). Consequently, the criminal alien bar does not prevent
this Court from considering Zaldivar’s claims on appeal.
B. Zaldivar’s Controlled Substance Offenses
Zaldivar asserts that, in its 2019 order, the BIA erred in rejecting his
argument that his 2003 convictions cannot constitute controlled substance offenses
under Mathis v. United States, 136 S. Ct. 2243 (2016) and Moncrieffe v. Holder,
569 U.S. 184 (2013) because the Florida statutes did not require the state to prove
the defendant knowingly possessed any illicit substance and presumed culpable
mens rea.
1. Reasoned Consideration
The BIA must give reasoned consideration to an alien’s claims and make
adequate findings to permit our review. Ali v. U.S. Att’y Gen., 931 F.3d 1327,
1333 (11th Cir. 2019). A remand for lack of reasoned consideration is not a
disagreement with the BIA’s legal conclusions or factual findings, but a
determination “that, given the facts and claims in the specific case before the
[agency], the agency decision is so fundamentally incomplete that a review of legal
and factual determinations would be quixotic.” Id. (emphasis and quotations
omitted). Reasoned consideration requires only that the BIA heard and thought
about the case, rather than “merely react[ing].” Id. A failure of reasoned
consideration results when the BIA decision, “read alongside the evidentiary
7 USCA11 Case: 17-15441 Date Filed: 11/05/2020 Page: 8 of 17
record, forces us to doubt whether we and the [BIA] are, in substance, looking at
the same case.” Id. at 1334.
The BIA failed to give reasoned consideration to Zaldivar’s claim. See Bing
Quan Lin v. U.S. Att’y Gen., 881 F.3d 860, 872 (11th Cir. 2018) (stating we review
claims of legal error, including claims the BIA did not provide reasoned
consideration in its decision, de novo). Zaldivar argued to the BIA that he was not
removable for having been convicted of a controlled substance offense because his
offense lacked a mens rea element as to the illicit nature of the substances he
possessed. The BIA rejected this argument by stating he remained removable
under Matter of Navarro Guadarrama, 27 I. & N. Dec. 560 (BIA 2019). But,
although Navarro Guadarrama addressed whether a conviction under Fla. Stat.
§ 893.13(6) is a controlled substance offense, it rejected a completely different
argument for why such a conviction did not qualify; it had nothing whatsoever to
do with the lack of a mens rea element as to the illicit nature of the substance
possessed, or, indeed, any lacking element. See 27 I. & N. Dec. at 560-63, 567-68
(dismissing an appeal considering whether a conviction for possession of less than
20 grams of marijuana under Fla. Stat. § 893.13(6)(b) was a controlled substance
offense, finding although the state’s definition might be more broadly written, the
alien had not demonstrated there was a realistic probability the state would actually
prosecute conduct involving a substance that was not federally controlled).
8 USCA11 Case: 17-15441 Date Filed: 11/05/2020 Page: 9 of 17
Accordingly, the BIA’s exclusive reliance on Navarro Guadarrama to reject
Zaldivar’s challenge shows a lack of reasoned consideration, because the BIA’s
decision is not reasonably responsive to the argument made to it, and reveals
instead that the BIA “merely reacted” rather than “heard and thought.” See Ali,
931 F.3d at 1333-34. We need not remand for the BIA to consider Zaldivar’s
argument anew, however, because as explained below, this issue falls within one of
the “rare circumstances” where no additional explanation, investigation, or
findings by the agency would be necessary or helpful. Calle v. U.S. Att’y Gen.,
504 F.3d 1324, 1329-31 (11th Cir. 2007).
2. Whether the Convictions Qualify
When the BIA has failed to address a particular issue “put before it, ‘the
proper course, except in rare circumstances, is to remand to the agency for
additional investigation or explanation.’” Id. at 1329 (quoting INS v. Ventura, 527
U.S. 12, 16 (2002)). In Calle, we determined that such a rare circumstance was
present, such that remand was unnecessary, because the undecided issue was a
legal issue with undisputed facts, a procedural one, and not one upon which the
BIA could bring its expertise to bear and make an initial determination that would
aid us in our later determination of whether the BIA had exceeded its leeway under
the law. Id. at 1330-31 (declining to remand for BIA to consider petitioner’s
motion to reconsider, which the BIA wrongly denied as numerically barred,
9 USCA11 Case: 17-15441 Date Filed: 11/05/2020 Page: 10 of 17
because the motion merely reiterated prior arguments and presented irrelevant or
cumulative evidence).
In relevant part, 8 U.S.C. § 1227(a)(2)(B)(i), provides an alien is deportable
if, any time after his admission, he “has been convicted of a violation of . . . any
law or regulation of a State . . . relating to a controlled substance (as defined in [21
U.S.C. § 802]).” 8 U.S.C. § 1227(a)(2)(B)(i). Marijuana, cocaine, and MDMA are
all controlled substances under § 802. See 21 U.S.C. § 802(6), 812. We have held
a Florida conviction for cocaine possession under Fla. Stat. § 893.13(6)(a) is a
conviction for a controlled substance offense under § 1227(a)(2)(B)(i),
notwithstanding the fact Florida criminalizes possession of some substances that
fall outside the federal definition of a controlled substance, because the Florida
statute is divisible by the identity of the drug possessed, and cocaine is a federally
controlled substance. Guillen v. U.S. Att’y Gen., 910 F.3d 1174, 1176, 1179-84
(11th Cir. 2018).
Florida’s statute defining a possession offense uses the general term
“controlled substance.” Fla. Stat. § 893.13(6)(a). At the time of Zaldivar’s
convictions, it read:
It is unlawful for any person to be in actual or constructive possession of a controlled substance unless [authorized by medically-related exceptions or as otherwise authorized in the chapter].
10 USCA11 Case: 17-15441 Date Filed: 11/05/2020 Page: 11 of 17
Id. (2003). Marijuana, cocaine, and MDMA are all defined as controlled
substances. See id. § 893.03(1)(c).
In 1996, the Florida Supreme Court held in Chicone v. State, that the offense
of possession of a controlled substance under Fla. Stat. § 893.13(6)(a) included an
element of mens rea as to the illicit nature of the substance the offender possessed.
684 So. 2d 736, 743-44 (Fla. 1996). In January 2002, in Scott v. State, the Florida
Supreme Court held that regardless of the defense raised or the affirmative
defenses asserted, a defendant in a controlled-substance possession case is entitled
to an instruction on the element of guilty knowledge as to the illicit nature of the
substance because it is an element of the crime, and the failure to give the
instruction was not harmless error. 808 So. 2d 166, 169-71 (Fla. 2002). In
response, the Florida legislature passed Fla. Stat. § 893.101, which states that
Chicone and Scott’s holdings were contrary to its legislative intent, that knowledge
of the illicit nature of a controlled substance is not an element of an offense under
the chapter, and instead the lack of such knowledge was an affirmative defense.
Fla. Stat. § 893.101. The statute became effective May 13, 2002. Id. Florida
appellate courts have held that Fla. Stat. § 893.101 may not be applied
retroactively to an offense occurring before May 13, 2002. See Sandifer v. State,
851 So. 2d 788, 790 (Fla. 4th DCA 2003); see also, e.g., J.J.N. v. State, 877 So. 2d
11 USCA11 Case: 17-15441 Date Filed: 11/05/2020 Page: 12 of 17
806, 809 n.2 (Fla. 5th DCA 2004); State v. Odom, 862 So. 2d 56, 58-59 (Fla. 2d
DCA 2003); Gordon v. State, 858 So. 2d 359, 359-60 & n.1 (Fla. 1st DCA 2003).
Remand is unnecessary because the undisputed facts show that Zaldivar’s
offenses of conviction contained a mens rea element as to the illicit nature of the
substances he possessed. Zaldivar committed his drug-possession offenses on
November 16, 2001, before the effective date of Fla. Stat. § 893.101, which
removed the illicit-nature-of-substance mens rea element, and the statute does not
apply retroactively. Fla. Stat. § 893.101; Sandifer, 851 So. 2d at 790.
Consequently, even if Zaldivar were correct that the lack of a mens rea element as
to the illicit nature of the substance would make an offense not a controlled
substance offense, his challenge would fail because his offenses had such an
element. Thus, we deny Zaldivar’s petition as to this issue, notwithstanding the
BIA’s failure to afford his claim reasoned consideration.
C. Equitable Tolling
Zaldivar asserts the BIA erred in determining the time for filing his 2017
motion to reopen, based on the BIA’s statutory authority, was not equitably tolled.
Under the INA, subject to limited exceptions not relevant here, an alien may file
only one statutory motion to reopen his removal proceedings, and he must file it
within 90 days of the entry of his final order of removal. 8 U.S.C.
§ 1229a(c)(7)(A), (C). The 90-day deadline may be equitably tolled, however. See
12 USCA11 Case: 17-15441 Date Filed: 11/05/2020 Page: 13 of 17
Avila-Santoyo v. U.S. Att’y Gen., 713 F.3d 1357, 1362-65 (11th Cir. 2013) (en
banc). Equitable tolling of a filing deadline typically requires a showing that:
(1) the litigant “has been pursuing his rights diligently,” and (2) “some
extraordinary circumstance stood in his way.” Bing Quan Lin, 881 F.3d at 872.
We have agreed with the BIA’s conclusion the defendant was not entitled to
equitable tolling of the deadline to file a motion to reopen when the motion was
filed three years after the case that allegedly made her no longer removable.
United States v. Watkins, 880 F.3d 1221, 1226 n.2 (11th Cir. 2018). We stated that
waiting over three years to seek reopening “after the means to challenge that
[removal] order became available does not demonstrate diligence,” particularly in
light of the petitioner’s lack of explanation for the delay. Id.
The BIA did not err in determining that Zaldivar failed to establish his
entitlement to equitable tolling because he could not show he acted diligently or
extraordinary circumstances beyond his control prevented him from filing his
motion to reopen until 2016. While Zaldivar was indisputably unable to file his
motion to reopen within 90 days of his January 2004 removal order (because it was
based on Lopez, which did not exist until December 2006), the question before the
agency was whether the deadline should be equitably tolled until September 2016,
when Zaldivar actually filed his motion. Zaldivar argues his nearly 10-year delay
in filing the motion after Lopez issued was reasonable—and therefore should not
13 USCA11 Case: 17-15441 Date Filed: 11/05/2020 Page: 14 of 17
prevent him from obtaining equitable tolling—because he did not know about
Lopez, or have reason to research whether the grounds for reopening existed, until
it appeared that removals to Cuba were likely to occur.
First, a showing that one had little need to pursue his rights diligently
because of the enforceability of Cuban deportation orders is not an excusable
reason for failing to pursue his rights diligently. Second, not having an imminent
motivation for trying to challenge one’s removal order is also not an “extraordinary
circumstance” that is beyond one’s control, that actually prevents one from filing,
or that is as “compelling” as serious illness or the death of a family member. See 8
U.S.C. § 1229a(e)(1) (explaining “exceptional circumstances” include “battery or
extreme cruelty” to the alien or a parent or child; serious illness of the alien or a
spouse, child or parent; death of the alien’s spouse, child, or parent; or other
circumstances that are no less compelling and that are beyond the alien’s control).
Accordingly, the BIA did not err in finding that Zaldivar was not entitled to
equitable tolling.
D. Defective Notice to Appear
Zaldivar asserts that, under Pereira v. Sessions, 138 S. Ct. 2105 (2018), the
BIA should have reopened and terminated his removal proceedings because the
defective notice to appear (NTA) deprived the IJ of jurisdiction or, alternatively,
prejudiced Zaldivar.
14 USCA11 Case: 17-15441 Date Filed: 11/05/2020 Page: 15 of 17
In Pereira, the Supreme Court held—in the context of when an alien’s
continuous physical presence for purposes of cancellation of removal ends—that
an NTA that does not specify the time and place of the hearing does not comport
with 8 U.S.C. § 1229(a) and consequently is not an NTA at all. See Pereira, 138
S. Ct. at 2110. For years, almost every NTA the government served omitted the
time and date of the removal hearing, stating instead they were “to be determined.”
Matter of Bermudez Cota, 27 I. & N. Dec. 441, 444 (BIA 2018).
After Pereira, we considered whether an NTA that failed to state the time
and date of the hearing deprived the agency of jurisdiction over the removal
proceedings. See Perez-Sanchez v. U.S. Att’y Gen., 935 F.3d 1148 (11th Cir.
2019). As an initial matter, we concluded we had jurisdiction to review Perez-
Sanchez’s Pereira claim, even though he did not raise it first before the BIA. Id. at
1153. We explained we “always have jurisdiction to determine our own
jurisdiction,” and because our jurisdiction to review removal proceedings extended
only to final orders of removal, we necessarily had to determine whether there was
a valid final order of removal granting us jurisdiction. Id. (quotations omitted).
Thus, Perez-Sanchez’s failure to exhaust the claim before the agency did not
deprive us of jurisdiction. Id.
Turning next to the merits, we first determined the NTA was
“unquestionably deficient” under 8 U.S.C. § 1229(a) for failing to specify the time
15 USCA11 Case: 17-15441 Date Filed: 11/05/2020 Page: 16 of 17
and date of the removal hearing. Id. We reasoned Pereira foreclosed any
argument that a statutory defect in an NTA could be later cured by a subsequent
notice of hearing including the time and date. Id. We stated “a notice of hearing
sent later might be relevant to a harmlessness inquiry, but it does not render the
original NTA non-deficient.” Id. at 1154.
Nonetheless, in Perez-Sanchez we concluded the defective NTA did not
deprive the agency of jurisdiction over the removal proceedings because the
statutory “time-and-place requirement” did not “create a jurisdictional rule,” but
was instead a “claim-processing rule.” Id. at 1150, 1154. Similarly, we also
concluded that 8 C.F.R. § 1003.14 too, “despite its language, sets forth not a
jurisdictional rule but a claim-processing one,” reasoning “an agency cannot
fashion a procedural rule to limit jurisdiction bestowed upon it by Congress.” Id.
at 1154-55. Having determined the agency properly exercised jurisdiction over
Perez-Sanchez’s removal proceedings, we denied his petition for review as to his
Pereira claim. Id. at 1157. Finally, to the extent Perez-Sanchez claimed he was
entitled to a remand because the NTA otherwise violated the agency’s
claim-processing rules, we dismissed the petition for lack of jurisdiction because
the claim was unexhausted. Id.
To the extent Zaldivar argues the defective NTA in his case deprived the
agency of jurisdiction, that claim fails. Perez-Sanchez, 935 F.3d at 1153-57.
16 USCA11 Case: 17-15441 Date Filed: 11/05/2020 Page: 17 of 17
Additionally, the BIA did not err in denying Zaldivar’s Pereira claim because he
failed to show any prejudice from the defective NTA. Zaldivar asserts he was
prejudiced by his removal proceedings occurring when they did, that is, before
Lopez showed him not to be removable as an aggravated felon. However, the
appropriate prejudice inquiry is whether he was harmed by the NTA’s defect—i.e.,
the NTA stating his removal hearing would be at a date and time “to be set” rather
than setting forth an actual date and time—not by his removal proceedings taking
place when they did. Zaldivar has not raised any claim that he was harmed or
prejudiced by the omission of the hearing information on the NTA. Because the
prejudice argument he makes does not relate to the NTA’s deficiency, and he did
in fact appear at his hearing before the IJ, he has not shown any prejudice.
II. CONCLUSION
Accordingly, we dismiss Zaldivar’s petitions to the extent they are based on
the BIA’s exercise of its sua sponte authority to reopen and deny his petition as to
the remaining grounds.
DISMISSED in part and DENIED in part.