Opinion
No. 19-12178
01-28-2020
JEAN CARLO ESPEJO-DAVILA, Petitioner, v. U.S. ATTORNEY GENERAL, Respondent.
[DO NOT PUBLISH] Non-Argument Calendar Agency No. A089-828-905 Petition for Review of a Decision of the Board of Immigration Appeals Before GRANT, LUCK, and ANDERSON, Circuit Judges. PER CURIAM:
Jean Espejo-Davila, a native and citizen of Peru, petitions us to review the Board of Immigration's ("BIA") order denying his untimely and number-barred motion to reopen his removal proceedings. Espejo-Davila timely filed his first motion to reopen in April 2015, which the BIA denied. In the instant motion to reopen, Espejo-Davila argued that Pereira v. Sessions, 138 S. Ct. 2105 (2018), was a fundamental change in law that warranted a sua sponte reopening of his removal proceedings. The BIA denied Espejo-Davila's instant motion to reopen, finding that Pereira did not provide a basis for sua sponte reopening his case.
We review the BIA's denial of a motion to reopen for an abuse of discretion. Al Najjar v. Ashcroft, 257 F.3d 1262, 1302 (11th Cir. 2001). Under this deferential standard of review, we examine whether the discretion exercised was arbitrary or capricious. Zhang v. U.S. Att'y Gen., 572 F.3d 1316, 1319 (11th Cir. 2009). However, we are obligated to review the existence of subject matter jurisdiction sua sponte where it may be lacking. Cadet v. Bulger, 377 F.3d 1173, 1179 (11th Cir. 2004). Such review is conducted de novo. Gonzalez-Oropeza v. U.S. Att'y Gen., 321 F.3d 1331, 1332 (11th Cir. 2003).
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 reopen an alien's case sua sponte. Lenis v. U.S. Att'y Gen., 525 F.3d 1291, 1294 (11th Cir. 2008); 8 C.F.R. § 1003.2(a). However, if a petitioner alleges "constitutional claims related to the BIA's decision not to exercise its sua sponte power to reopen," then we "may have jurisdiction" over those claims. Lenis, 525 F.3d at 1294 n.7. A petitioner must allege at least a colorable constitutional violation for us to retain jurisdiction pursuant to 8 U.S.C. § 1252(a)(2)(D). Arias v. U.S. Att'y Gen., 482 F.3d 1281, 1284 (11th Cir. 2007).
A party may file only one motion to reopen his removal proceedings, and that motion "shall state the new facts that will be proven at a hearing to be held if the motion is granted, and shall be supported by affidavits or other evidentiary material." INA § 240(c)(7)(A), (B), 8 U.S.C. § 1229a(c)(7)(A), (B). Generally, a "motion to reopen shall be filed within 90 days of the date of entry of a final administrative order of removal," or before September 30, 1996, whichever is later, subject to certain exceptions. INA § 240(c)(7)(C)(i), 8 U.S.C. § 1229a(c)(7)(C)(i). The time and numerical limitations do not apply where: (1) the alien seeks asylum or withholding of removal based on changed country conditions; (2) the rule for battered spouses, children, or parents applies; (3) the motion was jointly filed by the alien and the government; or (4) the government seeks termination of asylum. INA § 240(c)(7)(C), 8 U.S.C. § 1229a(c)(7)(C); see also 8 C.F.R. § 1003.2(3).
In this case, we do not have jurisdiction to review the BIA's decision not to reopen Espejo-Davila's removal proceedings sua sponte. This reflects the general rule that we cannot exercise jurisdiction over a decision to not reopen removal proceedings sua sponte unless there are constitutional claims concerning the BIA's decision. See Lenis, 525 F.3d at 1294 n.7. Though Espejo-Davila argues that Pereira was a fundamental change in the law that warranted sua sponte reopening, the BIA concluded that there was no change in law that would support sua sponte reopening. Espejo-Davila points to no colorable constitutional infirmities with the BIA's decision not to reopen his proceedings sua sponte and therefore, we cannot exercise jurisdiction over it.
Indeed, the only issue raised by Espejo-Davila on appeal is an issue of statutory interpretation relating to when the stop-time rule is triggered. In the absence of a colorable constitutional claim, we have no jurisdiction. --------
PETITION DISMISSED.