Glendon Assis Miranda v. U.S. Attorney General , 624 F. App'x 738 ( 2015 )

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[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
________________________
No. 15-11536
Non-Argument Calendar
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Agency No. A200-853-258
GLENDON ASSIS MIRANDA,
Petitioner,
versus
U.S. ATTORNEY GENERAL,
Respondent.
________________________
Petition for Review of a Decision of the
Board of Immigration Appeals
________________________
(December 9, 2015)
Before TJOFLAT, MARCUS and JILL PRYOR, Circuit Judges.
PER CURIAM:
Glendon Miranda, a native and citizen of Brazil, proceeding pro se, petitions
for review of the Board of Immigration Appeals’ (“BIA”) order denying his
February 2015 motion to reopen removal proceedings sua sponte. Miranda argues
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that: (1) the immigration judge (“IJ”) exhibited bias in his removal proceedings
and erred in concluding that his children’s medical conditions did not constitute
exceptional and extremely unusual hardship; and (2) the BIA erred in affirming the
IJ’s decision and that reopening should have been granted in light of those errors.
After thorough review, we dismiss the petition in part and deny it in part.
We review our subject matter jurisdiction de novo. Chao Lin v. U.S. Att’y
Gen., 677 F.3d 1043, 1045 (11th Cir. 2012). Typically, we review for abuse of
discretion the BIA’s denial of a motion to reopen removal proceedings, and our
review is limited to determining whether the BIA exercised its discretion in an
arbitrary or capricious manner. Zhang v. U.S. Att’y Gen., 572 F.3d 1316, 1319
(11th Cir. 2009). Where a petitioner seeks review of the denial of a motion to
reopen based on the BIA’s sua sponte authority, however, we lack jurisdiction over
that claim. Lenis v. U.S. Att’y Gen., 525 F.3d 1291, 1292-93 (11th Cir. 2008).
As an initial matter, the law-of-the-case doctrine bars Miranda’s challenge to
his final order of removal. Under this doctrine, an appellate court’s fact-findings
and conclusions of law are generally binding in all later proceedings in the same
case. Mega Life & Health Ins. Co. v. Pieniozek, 585 F.3d 1399, 1405 (11th Cir.
2009). The law-of-the-case doctrine may only be overcome if: (1) new and
substantially different evidence is produced; (2) controlling authority has changed;
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or (3) the prior decision was clearly erroneous and would result in a manifest
injustice. Oladeinde v. City of Birmingham, 230 F.3d 1275, 1288 (11th Cir. 2000).
To the extent that Miranda seeks to challenge the BIA’s final order affirming
the IJ’s denial of his application for cancellation of removal, the law of the case
doctrine applies. Miranda presents the same arguments on that issue in the instant
appeal as he did in Miranda v. U.S. Att’y Gen. (“Miranda I”), 561 F. App’x 809
(11th Cir. 2014) (unpublished), and we previously concluded that we lacked
jurisdiction to review that claim because Miranda’s petition for review was
untimely. Furthermore, Miranda has not presented any new or substantially
different evidence, does not contend that controlling authority has changed, and
has not demonstrated that Miranda I was clearly erroneous. Accordingly, we deny
Miranda’s petition to the extent that it challenges his final order of removal.
As for his challenge to the denial of his second motion to reopen, we lack
jurisdiction to review it. Under the Immigration and Nationality Act (“INA”), an
alien may file one motion to reconsider within 30 days of the BIA’s final order of
removal, specifying the errors of law or fact in the BIA’s order. 8 U.S.C. §
1229a(c)(6); 8 C.F.R. 1003.2(b). An alien may also file one motion to reopen
removal proceedings within 90 days of the BIA’s final order of removal, which
must state new facts that would be proven at a hearing if the motion were granted
and be supported by affidavits or other evidence. 8 U.S.C. § 1229a(c)(7); 8 C.F.R.
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§ 1003.2(c). Further, the BIA retains the authority to reopen removal proceedings
or reconsider a prior decision sua sponte at any time. 8 C.F.R. § 1003.2(a).
We liberally construe pleadings filed by pro se litigants, holding them to a
less stringent standard than those prepared by lawyers. Campbell v. Air Jamaica
Ltd., 760 F.3d 1165, 1168 (11th Cir.), cert. denied, 135 S. Ct. 759 (2014).
Nevertheless, “issues not briefed on appeal by a pro se litigant are deemed
abandoned,” and will not be considered. Timson v. Sampson, 518 F.3d 870, 874
(11th Cir. 2008).
Contrary to the government’s assertions, Miranda expressly claimed in his
brief that he sought review of that decision and argued that reopening was
warranted based on the IJ’s errors. Thus, Miranda has not abandoned his challenge
to the BIA’s March 2015 denial of his second motion to reopen. Nevertheless, we
lack jurisdiction to review that decision. As the BIA noted, Miranda’s motion was
time- and number-barred, since it was filed more than 90 days after the issuance of
the BIA’s final order of removal and was Miranda’s third motion seeking
reconsideration and/or reopening. Consequently, the BIA only could have granted
reopening through its sua sponte authority. In fact, Miranda explicitly requested
that the BIA exercise its sua sponte authority to reopen his removal proceedings.
Because we lack jurisdiction to review a petition challenging the denial of a motion
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to reopen based on the BIA’s sua sponte authority, we dismiss the part of
Miranda’s petition challenging the BIA’s March 2015 order.
DENIED in part and DISMISSED in part.
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