Kirk Evans Lacey v. U.S. Attorney General ( 2019 )


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  •            Case: 18-10167   Date Filed: 10/04/2019   Page: 1 of 4
    [DO NOT PUBLISH]
    IN THE UNITED STATES COURT OF APPEALS
    FOR THE ELEVENTH CIRCUIT
    ________________________
    No. 18-10167
    Non-Argument Calendar
    ________________________
    Agency No. A074-636-453
    KIRK EVANS LACEY,
    Petitioner,
    versus
    U.S. ATTORNEY GENERAL,
    Respondent.
    ________________________
    Petition for Review of a Decision of the
    Board of Immigration Appeals
    ________________________
    (October 4, 2019)
    Before ED CARNES, Chief Judge, WILLIAM PRYOR, and BRANCH, Circuit
    Judges.
    PER CURIAM:
    Case: 18-10167     Date Filed: 10/04/2019    Page: 2 of 4
    Kirk Evans Lacey petitions for review of the Board of Immigration Appeals’
    final order declining to exercise its sua sponte authority to reopen his removal
    proceedings. The government moved to dismiss Lacey’s petition for lack of
    jurisdiction. Because the law in our circuit is clear that we do not have jurisdiction
    to review the BIA’s decision, we dismiss Lacey’s petition.
    I.
    Lacey, a native and citizen of Jamaica, entered the United States in 1989 and
    became a lawful permanent resident in 1999. In 2011 he was convicted of several
    fraud offenses resulting in losses totaling $77,750. Two years later immigration
    officials served him with a notice to appear, alleging that he was removable under
    8 U.S.C. § 1227(a)(2)(A)(iii) because he was an alien convicted of an aggravated
    felony. On December 16, 2013, an immigration judge ordered Lacey removeable
    as charged. He appealed to the Board of Immigration Appeals, which affirmed the
    IJ’s decision on May 21, 2014.
    More than three years after the BIA affirmed the IJ’s decision, Lacey filed a
    motion asking the BIA to reopen his removal proceedings under both its statutory
    authority and its discretionary sua sponte authority. The BIA denied the request to
    reopen under its statutory authority because Lacey had not filed his motion within
    the 90-day period for statutory reopening and he had not identified any applicable
    exception to that deadline. The BIA also denied his request to reopen under its
    2
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    discretionary sua sponte authority because he did not demonstrate the exceptional
    circumstances necessary to justify sua sponte reopening. Lacey petitioned this
    court for review challenging only the BIA’s decision to deny his motion for sua
    sponte reopening. 1
    II.
    The BIA retains broad discretion to reopen removal proceedings sua sponte
    at any time, but it exercises that authority only in exceptional circumstances.
    Butka v. U.S. Att’y Gen., 
    827 F.3d 1278
    , 1283 (11th Cir. 2016). To establish
    exceptional circumstances, an alien must show that there is “a substantial
    likelihood that the result in [his] case would be changed if reopening is granted.”
    In re Beckford, 22 I. & N. Dec. 1216, 1219 (BIA 2000).
    We have held that we do not have jurisdiction to review the BIA’s decision
    whether to sua sponte reopen removal proceedings because that decision is
    committed to agency discretion. Lenis v. U.S. Att’y Gen., 
    525 F.3d 1291
    , 1292–93
    (11th Cir. 2008); see also 
    Butka, 827 F.3d at 1285
    –86 (“[W]e lack jurisdiction to
    review the BIA’s denial of her motion for sua sponte reopening.”). 2 In such a
    1
    Lacey did not argue that the BIA incorrectly denied his motion to reopen under its
    statutory authority until his reply brief, so he has forfeited any argument to that effect. See In re
    Egidi, 
    571 F.3d 1156
    , 1163 (11th Cir. 2009).
    2
    We have noted “in passing, that an appellate court may have jurisdiction over
    constitutional claims related to the BIA’s decision not to exercise its sua sponte power.” See
    
    Lenis, 525 F.3d at 1294
    n.7. Lacey does not assert any constitutional claims related to the BIA’s
    decision not to exercise its sua sponte authority.
    3
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    situation there is “no meaningful standard against which to judge the agency’s
    exercise of discretion.” 
    Lenis, 525 F.3d at 1293
    .
    In his petition, Lacey challenges only the BIA’s decision not to sua sponte
    reopen his removal proceedings. Because we do not have jurisdiction to review
    that decision, we DISMISS Lacey’s petition.
    4
    

Document Info

Docket Number: 18-10167

Filed Date: 10/4/2019

Precedential Status: Non-Precedential

Modified Date: 10/4/2019