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[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
________________________
Nos. 17-15720; 18-12315
Non-Argument Calendar
________________________
Agency No. A079-343-888
ALBA LUCIA REINA BERNAL,
Petitioner,
versus
U.S. ATTORNEY GENERAL,
Respondent.
________________________
Petitions for Review of a Decision of the
Board of Immigration Appeals
________________________
(April 17, 2019)
Before ED CARNES, Chief Judge, MARTIN, and NEWSOM, Circuit Judges.
PER CURIAM:
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Alba Lucia Reina Bernal seeks review of decisions by the Board of
Immigration Appeals denying (1) her motion requesting that the BIA sua sponte
reopen her removal proceedings, (2) her motion for reconsideration of the BIA’s
denial of her motion to reopen, and (3) her second motion for sua sponte
reopening.
I.
Reina Bernal is a citizen of Colombia who came to the United States in 1999
on a non-immigrant B visa. The next year she changed her status to that of a non-
immigrant student on an F visa, and the year after that she applied for asylum. In
July 2001 the Immigration and Naturalization Services rejected her asylum
application and charged her as removable for failing to comply with the conditions
of her non-immigrant status. She conceded removability before an immigration
judge, but renewed her asylum claim and sought statutory withholding of removal.
She argued that she had been persecuted, threatened, and beaten by members of the
Revolutionary Armed Forces of Colombia (FARC) for her involvement in political
campaigns and her work as an architect for a municipal planning division in
Colombia. In November 2002 the IJ denied her application and ordered removal,
and Reina Bernal appealed to the BIA. The BIA dismissed her appeal in April
2004. She did not petition this Court for review.
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Thirteen years later, in June 2017, Reina Bernal filed with the BIA a
“motion to rescind removal order and reopen proceedings sua sponte due to
eligibility for newly available relief.” She stated that her attorney in the earlier
proceeding had not told her of the BIA’s ruling in time for her to petition this
Court for review and that her marriage to a United States citizen made her newly
eligible for an adjustment of status under section 245(a) of the Immigration and
Nationality Act,
8 U.S.C. § 1255(a). The BIA denied the motion, stating that
“becoming potentially eligible for relief from removal based on equities acquired
after the issuance of the final administrative order does not constitute an
exceptional situation warranting the exercise of [the Board’s] discretion.”
Reina Bernal petitioned this Court for review and a week later filed a motion
for reconsideration with the BIA. In that motion before the BIA she cited to
similar cases in which the BIA had recognized that becoming eligible for
previously unavailable relief was an exceptional circumstance that warranted the
reopening of removal proceedings, and she argued that her due process and equal
protection rights would be violated if the BIA denied her motion when it had
granted so many similar ones. She also argued, based on a 2017 Ninth Circuit
decision, that there had been an intervening and fundamental change in law
concerning withholding of removal and that changed political conditions in
Colombia made her eligible for asylum.
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The BIA construed that second filing as both a motion for reconsideration
and a second motion to reopen, and it denied them both. It explained that the
motion for reconsideration did not identify any error of law in the initial order to
warrant reconsideration and that the second motion to reopen was time barred and
did not qualify for an exception.
Reina Bernal again petitioned this Court for review, and we consolidated the
two petitions.
II.
Reina Bernal raises a number of arguments in her petitions, but they all fall
within two broad categories: (1) her contention that the BIA abused its discretion
by denying her motions to sua sponte reopen her removal proceedings so she could
pursue an adjustment of status based on her husband’s visa petition, and (2) her
contention that the BIA erred by denying her motions for statutory reopening so
she could pursue asylum protection based on changed country conditions in
Colombia and a change in law here. We will address each of those contentions in
order, beginning with whether we have jurisdiction to consider them. See Lenis v.
U.S. Att’y Gen.,
525 F.3d 1291, 1292 (11th Cir. 2008) (“We are, of course, always
required to address whether we have subject-matter jurisdiction.”). We make that
jurisdictional determination de novo. Chao Lin v. U.S. Att’y Gen.,
677 F.3d 1043,
1045 (11th Cir. 2012).
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A.
Reina Bernal first argues that the BIA’s refusal to reopen her removal
proceedings to allow her to pursue adjustment of status was arbitrary and
capricious because the Board had granted relief to other applicants in nearly
identical situations. We would ordinarily review the denial of a motion to reopen
for abuse of discretion, see Jiang v. U.S. Att’y Gen.,
568 F.3d 1252, 1256 (11th
Cir. 2009), but we lack jurisdiction to review the BIA’s denial of a motion to
reopen based on its sua sponte authority, Lenis,
525 F.3d at 1292–94.
There is a possible exception. In Lenis, we left open the question whether
“an appellate court may have jurisdiction over constitutional claims related to the
BIA’s decision not to exercise its sua sponte power.”
Id. at 1294 n.7. “That
question still remains open.” Butka v. U.S. Att’y Gen.,
827 F.3d 1278, 1284 (11th
Cir. 2016); see Bing Quan Lin v. U.S. Att’y Gen.,
881 F.3d 860, 871 (11th Cir.
2018) (“[W]e may retain jurisdiction where constitutional claims are raised relating
to the BIA’s refusal to reopen sua sponte.”) (emphasis added) (citing Lenis,
525
F.3d at 1294 n.7).
We need not answer that question now, though, because “[a] petitioner may
not create the jurisdiction that Congress chose to remove simply by cloaking an
abuse of discretion argument in constitutional garb.” Arias v. U.S. Att’y Gen.,
482
F.3d 1281, 1284 (11th Cir. 2007) (quotation marks omitted). And that is what
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Reina Bernal has done. She argues that the BIA violated her due process and equal
protection rights because “the BIA did not offer any reason for denying [her]
[motion to reopen], when record evidence demonstrates that similarly situated
respondents were granted sua sponte reopening.” We do not have jurisdiction to
consider this “abuse of discretion claim[] merely couched in constitutional
language.”
Id.
Reina Bernal also claims that she fits within another exception because
whether she “established prima facie eligibility for [adjustment of status] is a
question of law,” which she says the Court always has jurisdiction to review. Not
so. Our decision in Lenis forecloses her “argument that this Court could review
the legal issues presented in her motion[s] to reopen, while declining to reach the
question of whether the BIA should have exercised its discretionary power to grant
sua sponte reopening.” Butka, 827 F.3d at 1285–86 (citing Lenis,
525 F.3d at
1292).
B.
Reina Bernal’s second argument is that the BIA abused its discretion by
refusing to reopen her removal proceedings so she could pursue asylum,
withholding of removal, and protection under the Convention Against Torture. In
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its order denying her second motion to reopen, 1 the BIA determined that the
motion was untimely and did not qualify for an exception, did not include the
required application for asylum, and did not include sufficient evidence to establish
prima facie eligibility for asylum relief.
To the extent Reina Bernal sought a sua sponte reopening of her removal
proceedings based on her asylum claims, we are, for the same reasons discussed
above, without jurisdiction to review the BIA’s discretionary decision. See Lenis,
525 F.3d at 1294. We also lack jurisdiction to hear her arguments about why the
BIA’s 2004 decision denying her asylum application was wrong. She could have
petitioned this Court for review of that decision then but did not do so. It is too
late for us to review it now. See Chao Lin,
677 F.3d at 1046.
We can review the BIA’s denial of her motion for statutory reopening, and
we do so under the abuse of discretion standard. See Butka, 827 F.3d at 1283.
Ordinarily, a party may file only one motion to reopen removal proceedings, “and
that motion must be filed no later than 90 days after the date on which the final
administrative decision was rendered in the proceeding sought to be reopened.” 8
1
Reina Bernal did not mention changed country conditions or her desire to pursue an
asylum claim in her initial motion to reopen filed June 28, 2017. To the extent any of her current
asylum arguments are based on the BIA’s decision to deny that motion, we are without
jurisdiction to review them because she did not present them to the BIA. See Amaya-
Artunduaga v. U.S. Att’y Gen.,
463 F.3d 1247, 1250 (11th Cir. 2006) (“We lack jurisdiction to
consider a claim raised in a petition for review unless the petitioner has exhausted h[er]
administrative remedies with respect thereto.”).
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C.F.R. § 1003.2(c)(2); see 8 U.S.C. § 1229a(c)(7)(C)(i). That makes Reina
Bernal’s motion about 13 years too late.
Those time and numerical limitations do not apply if the motion to reopen is
to pursue asylum and is “predicated on changed country conditions . . . [that] are
material and could not have been discovered at the time of the removal
proceedings.” Jiang,
568 F.3d at 1256; see 8 U.S.C. § 1229a(c)(7)(C)(ii);
8 C.F.R.
§ 1003.2(c)(3)(ii). “An alien who attempts to show that the evidence is material
bears a heavy burden and must present evidence that demonstrates that, if the
proceedings were opened, the new evidence would likely change the result in the
case.” Jiang,
568 F.3d at 1256–57. Reina Bernal argues that she met this
requirement by attaching to her motion to reconsider news reports about the 2016
Colombian peace accord with FARC and statements by the U.S. ambassador that
FARC was not complying with its obligations under that agreement. The BIA
found that this evidence was insufficient to meet the timing exception or to
establish prima facie eligibility for asylum. We cannot say that those
determinations constituted an abuse of discretion. See Bing Quan Lin, 881 F.3d at
872–73 (explaining that we “afford[] significant discretion” to decisions denying a
motion to reopen immigration proceedings and that “going beyond the numerical
and time bars, the BIA may deny a motion for . . . failure to establish a prima facie
case”).
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The same result is true of Reina Bernal’s other timeliness argument. That
argument relies on
8 C.F.R. § 1208.4(a)(4)(i)(B), which permits asylum
applications to be filed out of time if there are “[c]hanges in the applicant’s
circumstances that materially affect the applicant’s eligibility for asylum, including
changes in applicable U.S. law . . . .”
Id. Reina Bernal cites an out-of-circuit case,
Barajas-Romero v. Lynch,
846 F.3d 351, 358 & n.11 (9th Cir. 2017), to argue that
the law governing asylum petitions has changed and that this change would affect
her petition. But as the BIA recognized in its order denying her motion, that case,
“arising in the jurisdiction of the United States Court of Appeals for the Ninth
Circuit . . . is not binding in these proceedings, which arise in the Eleventh
Circuit.” That determination was not an abuse of discretion, nor was it, as Reina
Bernal also asserts, otherwise unreasoned. See Jeune v. U.S. Att’y Gen.,
810 F.3d
792, 803 (11th Cir. 2016) (“A reasoned-consideration examination . . . looks to see
whether the agency has considered the issues raised and announced its decision in
terms sufficient to enable a reviewing court to perceive that it has heard and
thought and not merely reacted.”) (alterations and quotation marks omitted).
III.
To the extent that Reina Bernal seeks review of unexhausted claims, her
underlying order of removal, or the BIA’s denial of her motion to reopen based on
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its sua sponte authority, we dismiss the petitions for lack of jurisdiction. We deny
the petitions as to whatever claims or parts of claims are left.
PETITIONS DISMISSED IN PART and DENIED IN PART.
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