Ramon Jesus Lantes Gonzalez v. U.S. Attorney General

• Court: Court of Appeals for the Eleventh Circuit
• Decided: April 6, 2018
• Docket: 17-12970
• Status: Unpublished

Opinion

Case: 17-12970 Date Filed: 04/06/2018 Page: 1 of 9

[DO NOT PUBLISH]

IN THE UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT ________________________

No. 17-12970 Non-Argument Calendar ________________________

Agency No. A023-216-576

RAMON JESUS LANTES GONZALEZ, Petitioner,

versus

U.S. ATTORNEY GENERAL,

Respondent.

________________________

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

(April 6, 2018)

Before MARCUS, ROSENBAUM and FAY, Circuit Judges.

PER CURIAM: Case: 17-12970 Date Filed: 04/06/2018 Page: 2 of 9

Ramon Jesus Lantes Gonzalez petitions for review of the Board of

Immigration Appeals’ (“BIA”) order affirming the denial by the Immigration

Judge (“IJ”) of his motion to reopen his immigration proceedings. We dismiss the

petition for lack of jurisdiction.

I. BACKGROUND

Gonzalez, a native and citizen of Cuba, was paroled in the United States in

1980 and granted lawful permanent resident status in 1986. In 1995, he pled guilty

to, and was convicted of, two counts of delivery and one count of possession of

cocaine, in violation of Florida law. The state court sentenced him to 17 months of

imprisonment. In 1996, authorities served Gonzalez with an Order to Show Cause,

charging him with deportability under Section 241(a)(2)(A)(iii), (B)(i) of the

Immigration and Nationality Act (“INA”), because he had been convicted of both

“aggravated felonies” and violations of “controlled substance” laws after his entry

into the country.

In May 1997, the government moved to pretermit Gonzalez’s anticipated

motion for relief under INA § 212(c). After a hearing, in October 1997, the IJ

issued an order stating that, on “the basis of [Gonzalez’s] admission,” he had

determined that Gonzalez was deportable as charged. After further stating that he

had “made no application for relief from deportation,” the IJ ordered that Gonzalez

be deported from the United States. Gonzalez did not administratively appeal this

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ruling; instead, less than 90 days later, he moved to reopen and reconsider. The IJ

denied his motion to reopen, stating that “[n]o substantial grounds [had] been

advanced to warrant its grant.” Gonzalez did not administratively appeal this

ruling; rather, he filed a motion for clarification, stating that the IJ’s order did “not

appear to rule on or consider” his claim for withholding of deportation. In

February 1998, the IJ denied his motion for clarification, noting that the statute

precluded him “from applying for political asylum as well as for withholding of

deportation.” Gonzalez did not appeal this ruling to the BIA.

In 2009, Gonzalez, proceeding pro se, filed a second motion to reopen his

immigration proceedings. The IJ denied his motion as both untimely, because it

was filed more than 90 days after the final 1997 order, and as number-barred,

because an alien is only permitted to file one motion to reopen. Gonzalez again

did not administratively appeal this decision.

In December 2016, Gonzalez, with the assistance of counsel, filed the

present motion “to sua sponte reopen [his] case” based on “exceptional

circumstances.” He argued that the IJ, in issuing the 1997 deportation order,

erroneously determined that he was ineligible for § 212(c) relief, as his case fit

squarely in the Supreme Court’s exception from INS v. St. Cyr, 533 U.S. 289, 121

S. Ct. 2271 (2001), which held that aliens who were convicted through a guilty

plea prior to the Antiterrorism and Effective Death Penalty Act (“AEDPA”) and

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the Illegal Immigration Reform and Immigrant Responsibility Act (“IIRIRA”)

were entitled to seek discretionary relief under INA § 212(c), provided they were

otherwise entitled to seek such relief.

In January 2017, the IJ denied Gonzalez’s motion to reopen. The IJ declined

to exercise his sua sponte authority to reopen the case, concluding that Gonzalez

would not be able to seek relief under § 212(c) and St. Cyr because his motion was

not filed prior to the April 2005 deadline and he therefore failed to show a

substantial likelihood that the result in his case would be changed. The IJ further

determined that “even assuming arguendo that [the motion] would not be untimely

or number-barred,” he failed to “meet his burden for proving that he merits a

favorable exercise of discretion or the rare case for a sua sponte reopening.”

Gonzalez appealed to the BIA. The BIA agreed with the IJ that although

Gonzalez could have sought § 212(c) relief under St. Cyr, such a request should

have been filed by April 2005. It also agreed that Gonzalez failed to otherwise

show exceptional circumstances warranting a sua sponte reopening. Finally, the

BIA concluded that Gonzalez failed to establish “that he was denied a full and fair

hearing at any stage of these proceedings.” The BIA dismissed the appeal.

II. DISCUSSION

On petition for review, Gonzalez argues that the agency should have

reopened his proceedings because he was denied a “full and fair hearing”

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throughout the process, particularly as to his claims for asylum, withholding of

removal, and relief under the former INA § 212(c).1 The government responds

that we lack jurisdiction to review the BIA’s order denying Gonzalez’s motion to

reopen, because it was requested under the agency’s sua sponte authority.

We review our subject matter jurisdiction de novo. Arias v. U.S. Att’y Gen.,

482 F.3d 1281, 1283 (11th Cir. 2007). Both the BIA and the IJ have the authority

to reopen removal proceedings or reconsider earlier decisions pursuant to their sua

sponte authority at any time. 8 C.F.R. §§ 1003.2(a), 1003.23(b)(1); Avila-Santoyo

v. U.S. Att’y Gen., 713 F.3d 1357, 1363 (11th Cir. 2013). We have held, however,

that we lack jurisdiction to review the BIA’s denial of a motion to reopen based on

its sua sponte authority, because 8 C.F.R. § 1003.2(a) provides no meaningful

standard against which to judge the BIA’s exercise of its discretion. Lenis v. U.S.

Att’y Gen., 525 F.3d 1291, 1292-94 (11th Cir. 2008). Moreover, under 8 U.S.C.

§ 1252(d)(1), we may only review arguments that have been fully exhausted before

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

2006). This requirement is jurisdictional; that is, we lack jurisdiction to consider

issues that were not raised in the petitioner’s arguments to the BIA. Id.

1 We note that Gonzalez challenges several agency rulings that predate the denial of his current motion to reopen, including the IJ’s original 1997 order of deportation. However, we conclude that we lack jurisdiction to review these rulings, and therefore these challenges warrant no further discussion. See INA § 242, 8 U.S.C. § 1252(b)(1); Dakane v. U.S. Att’y Gen., 399 F.3d 1269, 1272 n.3 (11th Cir. 2005). 5 Case: 17-12970 Date Filed: 04/06/2018 Page: 6 of 9

In Lenis, “in passing,” we noted “that an appellate court may have

jurisdiction over constitutional claims related to the BIA’s decision not to exercise

its sua sponte power,” but because the petitioner had not raised a constitutional

claim, we had no occasion to determine whether jurisdiction over such a

constitutional claim existed. Lenis, 525 F.3d at 1294 n.7. We later revisited the

issue and stated that this question remained open, but we confirmed that we

ordinarily lack jurisdiction to review the denial of a motion to reopen under the

agency’s sua sponte power. Butka v. U.S. Att’y Gen., 827 F.3d 1278, 1283-86

(11th Cir. 2016), cert. denied sub nom. Butka v. Sessions, 138 S. Ct. 299 (2017).

Again, because the petitioner in Butka did not raise any constitutional claims, we

did not engage in a detailed discussion of our jurisdiction over the denial of a sua

sponte motion to reopen that implicates constitutional issues. Id. at 1286; see also

Lin v. U.S. Att’y Gen., 881 F.3d 860, 871 (11th Cir. 2018) (“Constitutional claims

related to the BIA’s discretionary decisions are different. We have observed that

we may retain jurisdiction where constitutional claims are raised relating to the

BIA’s refusal to reopen sua sponte.”).

We have not addressed, in a published opinion, the circumstances in which

we retain jurisdiction to review constitutional claims related to the agency’s sua

sponte authority to reopen. In other contexts, we have indicated that in certain

circumstances, we may retain jurisdiction, despite limitations on judicial review,

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over constitutional claims raised in a petition for review. Arias, 482 F.3d at 1283-

84. Such claims must be “colorable,” however, and must not simply be abuse of

discretion arguments “cloak[ed] . . . in constitutional garb.” Id. at 1284 (quotation

omitted). In the exhaustion context, we have indicated that an allegation of a due

process violation that the petitioner was denied a “full and fair hearing” was

precisely the type of procedural error that required exhaustion, and over which we

lacked jurisdiction in the absence of such exhaustion. Amaya-Artunduaga, 463

F.3d at 1251. We also have held that due process arguments made in the context

of a denial of a motion to reopen were subject to the exhaustion requirement

because they did not raise “a larger challenge to the immigration process beyond

the power of the BIA to address.” Lin, 881 F.3d at 868. In other words, whether

we retained jurisdiction depended there on whether the claim was “within the

purview of the BIA,” which could provide a remedy. Amaya-Artunduaga, 463

F.3d at 1251 (quotation omitted).

Finally, in St. Cyr, the Supreme Court discussed the impact of the AEDPA’s

and the IIRIRA’s elimination of § 212(c) relief for aliens who were convicted of a

crime pursuant to a guilty plea while that relief was still a viable option. St. Cyr,

533 U.S. at 314-15, 121 S. Ct. at 2287. Prior to their enactment and at the time of

Gonzalez’s guilty plea in March 1996, § 212(c) provided an alien with the ability

to seek discretionary relief from exclusion if, inter alia, he did not receive more

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than a five-year sentence on the conviction that subjected him to deportation. Id. at

297, 121 S. Ct. at 2277. The Court ultimately held that because the possibility of

receiving § 212(c) relief undoubtedly played into these aliens’ decisions to plead

guilty, Ҥ 212(c) relief remain[ed] available for aliens . . . whose convictions were

obtained through plea agreements and who, notwithstanding those convictions,

would have been eligible for § 212(c) relief at the time of their plea under the law

then in effect.” Id. at 325-26, 121 S. Ct. at 2293. Following St. Cyr, applicable

regulations were promulgated allowing aliens to seek relief under its decision, but

the regulations provide that such “special motions” to reopen were required to be

filed prior to April 26, 2005. 8 C.F.R. § 1003.44(h); see also Executive Office for

Immigration Review, Section 212(c) Relief for Aliens With Certain Criminal

Convictions Before April 1, 1997, 69 Fed. Reg. 57826-01 (Sept. 28, 2004). See

generally 8 C.F.R. § 1003.44.

Here, assuming arguendo that Gonzalez has fully presented his argument

that the BIA erred in denying his motion to reopen under its sua sponte authority,

we conclude that we lack jurisdiction to review that denial. We have expressly

held that we lack jurisdiction to review such decisions. Lenis, 525 F.3d at 1292-

93. Although we potentially reserved jurisdiction to review them where

constitutional issues are implicated, no such claims are present in this case.

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First, Gonzalez’s claim that his due process rights were violated because he

never received a full hearing is precisely the type of claim the BIA can review, as it

is not a challenge to the larger immigration process itself. Lin, 881 F.3d at 868.

Second, Gonzalez’s claim is not “colorable” and is simply an abuse of discretion

argument—although he may be correct in asserting that, based on St. Cyr, he

should not have been per se barred from seeking § 212(c) relief at the time of his

original October 1997 deportation order, he had several years to seek relief

between the issuance of St. Cyr in 2001 and the April 2005 deadline. He failed to

do so and did not file the present motion until 2016. The fact that he had a nearly

four-year window in which to file a special motion to reopen and have his § 212(c)

claim adjudicated defeats his due process arguments. Accordingly, we lack

jurisdiction to review the agency’s denial of relief under its sua sponte power.

Finally, although Gonzalez asserts that, in an opinion issued after the BIA’s

order on appeal, we have held that his delivery of cocaine conviction no longer

qualifies as a crime that would preclude him from seeking both withholding and

§ 212(c) relief, 2 this argument was not presented to the BIA. Thus, it is

unexhausted and cannot be reviewed in this appeal. Amaya-Artunduaga, 463 F.3d

at 1250.

PETITION DISMISSED.

2 Gordon v. U.S. Att’y Gen. 861 F.3d 1314 (11th Cir. 2017). The BIA issued its order on June 6, 2017; Gordon was published on July 10, 2017. 9