Case: 17-15427 Date Filed: 12/19/2018 Page: 1 of 4
[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
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No. 17-15427
Non-Argument Calendar
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Agency No. A094-889-030
SULARDY GONZALEZ,
FRANCISCO JAIME ROCHA MARTIN,
Petitioners,
versus
U.S. ATTORNEY GENERAL,
Respondent.
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Petition for Review of a Decision of the
Board of Immigration Appeals
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(December 19, 2018)
Before MARTIN, JILL PRYOR, and ANDERSON, Circuit Judges.
PER CURIAM:
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Sulardy Gonzalez seeks review of the Board of Immigration Appeals’
(“BIA”) denial of her motion to reopen its final order affirming the Immigration
Judge’s (“IJ”) denial of her application for asylum, withholding of removal, and
relief under the United Nations Convention Against Torture and other Cruel,
Inhuman or Degrading Treatment or Punishment on behalf of herself and her then-
husband Franscisco Rocha. She argues that the BIA abused its discretion by
denying her motion as time- and number-barred without considering whether
equitable tolling applied. She also argues that the BIA abused its discretion by not
exercising its authority to reopen her case sua sponte.
I.
We review the BIA’s denial of a motion to reopen removal proceedings for
an abuse of discretion. Zhang v. U.S. Att’y Gen.,
572 F.3d 1316, 1319 (11th Cir.
2009). This review is limited to determining whether the BIA exercised its
discretion in an arbitrary or capricious manner.
Id.
We review de novo our subject matter jurisdiction. Ruiz v. Gonzales,
479
F.3d 762, 765 (11th Cir. 2007). We lack jurisdiction to review final orders in
immigration cases unless “the alien has exhausted all administrative remedies
available to the alien as of right.” Immigration and Nationality Act (“INA”)
§ 242(d)(1),
8 U.S.C. § 1252(d)(1). If a petitioner has failed to exhaust her
administrative remedies by not raising an issue before the BIA, we lack jurisdiction
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to consider the claim. Amaya-Artunduaga v. U.S. Att’y Gen.,
463 F.3d 1247, 1250
(11th Cir. 2006).
We may grant a petition for review, vacate an agency decision, and remand
for further proceedings if the agency’s decision is “so lacking in reasoned
consideration and explanation that meaningful review [is] impossible.” Indrawati
v. U.S. Att’y Gen.,
779 F.3d 1284, 1302 (11th Cir. 2015). In a reasonable
consideration inquiry, we look “to ensure that the IJ and the BIA considered the
issues raised and announced their decisions in terms sufficient to enable review.”
Id. A claim that a BIA decision lacked reasonable consideration does not need to
be exhausted before the BIA, because the claim cannot exist until after the BIA
issues its ruling. See
id. at 1299. However, the BIA does not err by not
considering an argument the petitioner does not make before it. See Jeune v. U.S.
Att’y Gen.,
810 F.3d 792, 802 (11th Cir. 2016) (noting in the context of a reasoned
consideration challenge that “it is hard to understand how [Jeune] can fault [the
agency] for its failure to intuit an argument he never made”).
Generally, an alien may only file one motion to reopen, and it must be filed
within 90 days of the date of the BIA’s final administrative removal order. See
INA § 240(c)(7)(A), (C)(i), 8 U.S.C. § 1229a(c)(7)(A), (C)(i);
8 C.F.R.
§ 1003.2(c)(2). The 90-day deadline is subject to equitable tolling. Avila-Santoyo
v. U.S. Att’y Gen.,
713 F.3d 1357, 1364 (11th Cir. 2013) (en banc). Equitable
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tolling requires a litigant to show that she has been pursuing her rights diligently
and that some extraordinary circumstance stood in her way.
Id. at 1363 n.5.
Here, the BIA did not abuse its discretion in concluding that the motion to
reopen was time- and number-barred because Gonzalez filed the motion more than
seven years after the BIA’s removal order became final and it was her second
motion to reopen. Further, the BIA did not err by not considering whether these
limits should be equitably tolled because Gonzalez did not make that argument
before it.
II.
The BIA may at any time reopen sua sponte any case in which it has
rendered a decision.
8 C.F.R. § 1003.2(a). Generally, the decision to reopen sua
sponte is committed to agency discretion, which is so wide and standardless that it
is not reviewable. Lenis v. U.S. Att’y Gen.,
525 F.3d 1291, 1293-94 (11th Cir.
2008). We do, however, retain jurisdiction to address constitutional claims that are
raised. Lin v. U.S. Att’y Gen.,
881 F.3d 860, 871 (11th Cir. 2018).
Here, we do not have jurisdiction to review Gonzalez’s argument that the
BIA should have exercised its authority to reopen her case sua sponte because it is
a decision committed to agency discretion.
PETITION DISMISSED IN PART AND DENIED IN PART.
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