Rudolph Lloyd Brown v. U.S. Attorney General

Opinion

Case: 18-10106 Date Filed: 11/08/2018 Page: 1 of 5

[DO NOT PUBLISH]

IN THE UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT ________________________

No. 18-10106 Non-Argument Calendar ________________________

Agency No. A042-465-069

RUDOLPH LLOYD BROWN,

Petitioner,

versus

U.S. ATTORNEY GENERAL,

Respondent.

________________________

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

(November 8, 2018)

Before WILSON, MARTIN, and NEWSOM, Circuit Judges.

PER CURIAM:

Rudolph Brown seeks review of the Board of Immigration Appeals’ (BIA)

order denying his motion for reconsideration of its order denying his motion to Case: 18-10106 Date Filed: 11/08/2018 Page: 2 of 5

reopen removal proceedings. The BIA previously affirmed an Immigration

Judge’s order finding Brown removable because (1) he was convicted of a

controlled substance offense, and (2) he was statutorily ineligible for cancellation

of removal pursuant to the Immigration and Nationality Act (INA) § 240A(a), 8

U.S.C. § 1229b(a), because he had already been granted a waiver of inadmissibility

under INA § 212(c), 8 U.S.C. § 1182(c). In his subsequent motion to reopen,

Brown argued that the Immigration Judge’s signature was forged on the § 212(c)

order, and the order was therefore void. Brown asserted that relying on the forged

order was a violation of his due process rights because he was deprived of his

statutory right to apply for cancellation of removal. He also contended that the

Department of Homeland Security’s (DHS) submission of the forged order

violated his rights and DHS should be equitably estopped from removing Brown

without providing him the opportunity to apply for relief from removal. After the

BIA denied his motion to reopen as untimely, Brown filed a motion to reconsider

arguing that he could not have presented his evidence before the deadline passed

and that the deadline should have been equitably tolled. On December 11, 2017,

the BIA issued an order denying Brown’s motion for reconsideration, finding that

Brown did not identify any error of fact or law in its prior decision, and noted that

his substantive analysis was duplicative of his prior motion to reopen proceedings.

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This appeal followed. We dismiss Brown’s petition for review for lack of

jurisdiction.

I.

Brown reasserts his arguments previously raised in his motion to reopen,

arguing that the Immigration Judge’s § 212(c) order was a forgery, that his due

process rights were violated, and that DHS should be equitably estopped from

removing him. We review subject matter jurisdiction de novo. Gonzalez-Oropeza

v. U.S. Att’y Gen., 321 F.3d 1331, 1332 (11th Cir. 2003). We have an obligation to

review sua sponte whether we have jurisdiction at any point in the appellate

process. Reaves v. Sec’y, Fla. Dep’t of Corr., 717 F.3d 886, 905 (11th Cir. 2013).

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

discretion. Calle v. U.S. Att’y Gen., 504 F.3d 1324, 1328 (11th Cir. 2007).

The petition for review of an order of removal must be filed no later than 30

days after the date of the final order of removal. INA § 242(b)(1), 8 U.S.C.

§ 1252(b)(1). This statutory time limit 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).

Our jurisdiction to review orders of removal is limited by the INA’s criminal

alien bar, which provides that “no court shall have jurisdiction to review any final

order of removal against an alien who is removable by reason of having committed

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a criminal offense covered in [INA § 237(a)(2)(B)].” INA § 242(a)(2)(C), 8

U.S.C. § 1252(a)(2)(C). Section 237(a)(2)(B) provides that “[a]ny alien

who . . . has been convicted of a violation of . . . any law . . . of a State . . . relating

to a controlled substance (as defined in section 802 of Title 21), other than a single

offense involving possession for one’s own use of 30 grams or less of marijuana, is

deportable.” INA § 237(a)(2)(B), 8 U.S.C. § 1227(a)(2)(B).

Notwithstanding these jurisdictional bars, we retain jurisdiction to review

constitutional claims or questions of law raised in a petition for review. INA

§ 242(a)(2)(D), 8 U.S.C. § 1252(a)(2)(D). We have jurisdiction over a

constitutional or legal claim only when the petitioner alleges “at least a colorable”

violation, which means that “the claim must have some possible validity.” See

Arias v. U.S. Att’y Gen., 482 F.3d 1281, 1284 & n.2 (11th Cir. 2007) (quotations

omitted). A petitioner cannot create jurisdiction “simply by cloaking an abuse of

discretion argument in constitutional garb.” Id. at 1284 (quotation omitted).

We conclude that we lack jurisdiction over Brown’s petition for review. As

an initial matter, we lack jurisdiction to review the BIA’s order denying Brown’s

motion to reopen because his petition for review of that order was untimely. INA

§ 242(b)(1), 8 U.S.C. § 1252(b)(1); Chao Lin, 677 F.3d at 1045. Our jurisdiction

is therefore limited to review of the BIA’s December 11, 2017 order denying

Brown’s second motion to reconsider, as this is the only agency decision that was

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issued within 30 days before his petition for review was filed. See Chao Lin, 677

F.3d at 2015. The INA’s criminal alien bar, however, limits our jurisdiction to

review of the BIA’s denial of reconsideration only to the extent Brown raises

colorable constitutional claims or questions of law. INA § 242(a)(2)(C)-(D), 8

U.S.C. § 1252(a)(2)(C)-(D).

Brown has failed to assert a constitutional claim or question of law with

respect to the BIA’s denial of reconsideration. Brown’s arguments regarding the

validity of the Immigration Judge’s § 212(c) order, the violation of his right to due

process, and equitable estoppel were all raised in his motion to reopen and rejected

when the BIA denied that motion. Brown’s attempt to re-raise these arguments

before this Court is tantamount to an argument that the BIA abused its discretion

when it concluded that his reiteration of those claims in his motion to reconsider

did not entitle him to reconsideration. But Brown cannot create jurisdiction

“simply by cloaking an abuse of discretion argument in constitutional garb.” See

Arias, 482 F.3d at 1284. Because Brown has not asserted a constitutional claim or

question of law directed to the BIA’s denial of reconsideration specifically, he has

not raised a legal or constitutional claim that has any “possible validity.” Id. Thus,

this Court lacks jurisdiction.

PETITION DISMISSED.