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[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
________________________
No. 18-11133
Non-Argument Calendar
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Agency No. A208-690-443
BEREKET OKBAZGHI GEBRENIGUS,
Petitioner,
versus
U.S. ATTORNEY GENERAL,
Respondent.
________________________
Petition for Review of a Decision of the
Board of Immigration Appeals
________________________
(April 30, 2019)
Before MARCUS, BRANCH, and ANDERSON, Circuit Judges.
PER CURIAM:
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Bereket Okbazghi Gebrenigus petitions for review of the order of the Board
of Immigration Appeals (“BIA”) affirming the Immigration Judge’s (“IJ”) denial
of his second motion to reopen. Gebrenigus argues that (1) the BIA abused its
discretion by denying his motion to reopen as time- and number-barred because he
presented evidence of changed country conditions in Eritrea; (2) the BIA
committed legal and constitutional error by failing to consider record evidence
when deciding whether to reopen his case under its sua sponte authority; and
(3) we should remand to the BIA with instructions to consider additional evidence
that became available after the BIA issued its decision.
I.
We review the BIA’s decision as the final judgment, unless the BIA
expressly adopted the IJ’s decision. Ruiz v. Gonzales,
479 F.3d 762, 765 (11th Cir.
2007). When the BIA explicitly agrees with the findings of the IJ, we will review
the decision of both the BIA and the IJ as to those issues. Ayala v. U.S. Att’y Gen.,
605 F.3d 941, 948 (11th Cir. 2010). 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.
Generally, an alien may only file one motion to reopen, which must be filed
within 90 days of the date of the final removal order. See Immigration and
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Nationality Act (“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). However, the time- and number-bars do not apply if a
petitioner seeks reopening of his asylum proceedings based on changed country
conditions in the removal country.
8 C.F.R. § 1003.2(c)(3)(ii). Evidence of
changed country conditions must be material and must have been unavailable or
undiscoverable at the time of the previous hearing.
Id. New evidence is material if
the petitioner demonstrates that, if the proceedings were opened, the evidence
would likely change the result in the case. Jiang v. U.S. Att’y Gen.,
568 F.3d 1252,
1256-57 (11th Cir. 2009). In Jiang, we held that the BIA and IJ abused their
discretion by denying Jiang’s motion to reopen because although China’s coercive
family planning policies had been in effect since 1979, she presented new evidence
that family planning laws were being more stringently enforced in her hometown.
Id. at 1258.
Here, the IJ and BIA did not abuse their discretion in denying Gebrenigus’s
motion to reopen as time- and number-barred. Further, the IJ and BIA did not
abuse their discretion by concluding that Gebrenigus did not present evidence of
changed country conditions to overcome these limitations because the reports
Gebrenigus submitted in support of his motion showed a continuation of the same
conditions that existed at the time of his original hearing.
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II.
We review de novo our subject matter jurisdiction. Butka v. U.S. Att’y Gen.,
827 F.3d 1278, 1282 n.4 (11th Cir. 2016).
The BIA may at any time reopen or reconsider sua sponte any case in which
it has rendered a decision.
8 C.F.R. § 1003.2(a). 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). Thus, we lack jurisdiction to review legal claims related to the BIA’s denial
of a motion to reopen proceedings sua sponte. See Butka, 827 F.3d at 1285.
However, we have expressly left open the question of whether we may exercise
jurisdiction over constitutional claims related to an underlying request for sua
sponte reopening. Lenis,
525 F.3d at 1294 n.7; Butka, 827 F.3d at 1286 n.7.
We may review legal and constitutional claims associated with a petition for
review notwithstanding the INA’s jurisdictional bars. INA § 242(a)(2)(D),
8
U.S.C. § 1252(a)(2)(D). The exception to the jurisdiction-stripping provisions
contained in the INA applies only when the petitioner’s constitutional claim is
“colorable.” Arias v. U.S. Att’y Gen.,
482 F.3d 1281, 1284 (11th Cir. 2007). If the
constitutional claim has no merit, we lack jurisdiction. Gonzalez-Oropeza v. U.S.
Att’y Gen.,
321 F.3d 1331, 1333 (11th Cir. 2003).
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Due process claims must assert a deprivation of a constitutionally protected
liberty or property interest. Bing Quan Lin, 881 F.3d at 868-69. There is no
constitutionally protected interest in purely discretionary forms of relief. Id.
Motions to reopen are discretionary forms of relief as to which there is no
constitutionally protected interest. Id.
Here, we lack jurisdiction to consider Gebrenigus’s legal and constitutional
claims associated with the denial of sua sponte reopening. Even if we have
jurisdiction to consider colorable constitutional claims related to the denial of sua
sponte reopening, we do not have jurisdiction here because Gebrenigus’s
constitutional claim is not colorable because he can claim no constitutionally
protected interest in a motion to reopen proceedings.
III.
The INA limits the scope of an appeals court’s review to the administrative
record on which the order of removal is based. INA § 242(b)(4)(A),
8 U.S.C.
§ 1252(b)(4)(A). In addition, it bars appeals courts from remanding a case to the
BIA to consider additional evidence. See INA § 242(a)(1),
8 U.S.C. § 1252(a)(1)
(limiting appellate courts’ ability to remand for consideration of additional
evidence under
28 U.S.C. § 2347(c)). We interpret these limitations as a
jurisdictional bar prohibiting us from consideration of extra-record evidence
submitted for the first time on appeal or from remanding to the BIA to consider
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new evidence. See Al Najjar v. Ashcroft,
257 F.3d 1262, 1278-79, 1281 (11th Cir.
2001).
Here, we cannot address the new evidence Gebrenigus submitted in his
appendix because our review is limited to the administrative record. Further, we
do not have the authority to remand the case to the BIA for consideration of this
evidence.
PETITION DISMISSED IN PART AND DENIED IN PART. 1
1
The Government’s motion to strike portions of Gebrenigus’ appendix is DENIED.
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