Jorge Bogar Fernandez v. U.S. Attorney General , 519 F. App'x 565 ( 2013 )

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[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
________________________
No. 12-14353
Non-Argument Calendar
________________________
Agency No. A094-804-339
JORGE BOGAR FERNANDEZ,
Petitioner,
versus
U.S. ATTORNEY GENERAL,
Respondent.
________________________
Petition for Review of a Decision of the
Board of Immigration Appeals
________________________
(May 23, 2013)
Before DUBINA, Chief Judge, MARCUS and KRAVITCH, Circuit Judges.
PER CURIAM:
Petitioner Jorge Bogar Fernandez seeks review of the 2012 dismissal order
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of the Board of Immigration Appeals (“BIA”), to reopen his removal proceedings.
He argues, inter alia, that the immigration judge (“IJ”) and BIA erred by applying
the wrong standard of review. 1
I.
Fernandez, a native citizen of Mexico, entered the United States at an
unknown date. The Department of Homeland Security (“DHS”) served him with a
notice to appear (“NTA”) charging him as removable under INA § 212(a)(6)(A)(i),
8 U.S.C. § 1182(a)(6)(A)(i) as an alien present in the United States without being
admitted or paroled, and an alien who did not possess a valid, unexpired document
of identity and nationality as required by INA § 212(a)(7)(A)(i)(I),
8 U.S.C. § 1182(a)(7)(A)(i)(I). In November 2009, he conceded removability and
indicated that he would seek cancellation of removal under INA § 240A(b),
8 U.S.C. § 1229b(b), and that in 2001, a relative had filed an I-130 petition on his
behalf, which was still pending.
The agency scheduled a removal hearing, but Fernandez moved for several
continuances, until a master hearing was finally held in March 2010, where he
again asserted that he intended to seek relief under INA § 240A(b). Fernandez
later moved twice for extensions of time to file the necessary forms and filing
1
We note that although Fernandez also challenges the merits of his 2010 removal order, we lack
jurisdiction to consider those arguments because he failed to file a timely petition for review
designating that order. INA § 242(b)(1), 8 U.S.C. § 1252(b)(1); Dakane v. U.S. Att’y Gen., 399
F.3d 1269, 1272 n.3 (11th Cir. 2005).
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receipt for his § 240A(b) application. The IJ granted both motions and set a final
deadline ordering him to file his application and receipt by November 1, 2010, or
his application would be considered abandoned. Fernandez did not file a
§ 240A(b) application or move for another extension before the IJ’s deadline.
In December 2010, the IJ determined that removability had been
demonstrated by clear and convincing evidence, noting that Fernandez still had not
filed an application for relief from removal or the required proof of eligibility,
despite indicating his intention to do so in November 2009. The IJ also noted that
there was no evidence of any I-130 petition. Because Fernandez never filed an
application for relief and there was no other prima facie evidence of relief pending,
the IJ determined that he had abandoned his claim for cancellation of removal
under INA § 240A(b) along with any relief concerning the purported I-130
petition. Accordingly, the IJ ordered Fernandez removed to Mexico.
Fernandez did not appeal the IJ’s decision to the BIA or file a petition for
review. Instead, on December 23, 2010, he moved, through counsel, to reopen his
removal proceedings and sought a stay of removal, arguing that his attorney had
problems trying to pay the filing fee and getting the fee receipt that was required to
submit his application. Fernandez argued that the IJ should grant his motion to
reopen and give him more time to apply for cancellation of removal, for which he
contended that he was eligible, or other forms of relief.
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The IJ declined to grant a stay of removal, and, in a supplemental filing,
Fernandez asserted that due to economic, personal, and emotional problems during
the past year, he had trouble participating in his removal case and working with his
attorney, but he was now able to do so. He contended that he had since filed a
§ 240A(b) application.
The IJ denied Fernandez’s motion in 2011, noting that he had been given
numerous opportunities to file an application for relief from removal but he did not
do so until a removal order was entered against him. The IJ determined that, based
on the evidence Fernandez had submitted with his motion, he failed to carry his
burden for reopening because, among other things, the documents and evidence
submitted were available and could have been presented earlier in the proceedings.
Fernandez appealed to the BIA, designating only the denial of his motion to
reopen. He contended that he met the requirements for cancellation of removal
under § 240A(b) and noted counsel’s multiple attempts to pay the filing fee.
The BIA dismissed Fernandez’s appeal in 2012. The BIA agreed with the
IJ’s conclusion that he failed to establish that the evidence he wanted to present
was new, previously unavailable, and could not have been presented during prior
hearings, especially because the IJ gave him ample notice and multiple
opportunities to apply for relief from removal. It appeared that he had some
problems submitting his application, but the BIA contended that Fernandez had
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intended to do so since at least November 2009 and failed to file an application
even after receiving approximately two years of continuances.
Fernandez then filed the instant petition for review, designating only the
BIA’s 2012 order.
II.
We have jurisdiction to determine our own jurisdiction and are required to
do so whenever jurisdiction may be lacking. Chacon-Botero v. U.S. Att’y Gen.,
427 F.3d 954, 956 (11th Cir. 2005); Patel v. U.S. Att’y Gen., 334 F.3d 1259, 1262
(11th Cir. 2003). The exhaustion requirement in the INA is jurisdictional and
precludes review of a claim that was not presented to the BIA. Amaya-Artunduaga
v. U.S. Att’y Gen., 463 F.3d 1247, 1249-50 (11th Cir. 2006).
When appropriate, we will review the denial of a motion to reopen a
removal order for abuse of discretion. Contreras-Rodriguez v. U.S. Att’y Gen., 462
F.3d 1314, 1316 (11th Cir. 2006). The scope of review, however, is limited to
determining whether there was an exercise of administrative discretion and if it
was “arbitrary or capricious.” Ali v. U.S. Att'y Gen., 443 F.3d 804, 808 (11th Cir.
2006). In general, an alien may file one motion to reopen proceedings within 90
days of the date of entry of a final administrative order of removal, and it needs to
state the new facts that will be proven at the hearing and provide all supporting
affidavits or other evidence. See INA § 240(c)(7), 8 U.S.C. § 1229a(c)(7). This
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90-day requirement is “mandatory and jurisdictional, and, therefore, it is not
subject to equitable tolling.” Abdi v. U.S. Att’y Gen., 430 F.3d 1148, 1150 (11th
Cir. 2005). Such motions are disfavored, especially in a removal proceeding,
“where, as a general matter, every delay works to the advantage of the deportable
alien who wishes merely to remain in the United States.” INS v. Doherty, 502 U.S.
314, 323, 112 S. Ct. 719, 724-25, 116 L. Ed. 2d 823 (1992).
An alien may file a motion to reopen with the BIA in order to present
evidence that was unavailable at the time of his removal proceedings. See
INA § 240(c)(6), 8 U.S.C. § 1229a(c)(6); 8 C.F.R. § 1003.2(c)(1). A motion to
reopen “shall state the new facts that will be proven at a hearing to be held if the
motion is granted, and shall be supported by affidavits or other evidentiary
material.” INA § 240(c)(7)(A), (B), 8 U.S.C. § 1229a(c)(7)(A), (B);
Verano-Velasco v. U.S. Att’y Gen., 456 F.3d 1372, 1376 (11th Cir. 2006). Motions
to reopen may be granted if there is new evidence that is material, was not
available, and could not have been discovered or presented at the removal hearing.
See 8 C.F.R. §§ 1003.2(c)(1), 1003.23(b)(3); see also Abdi, 430 F.3d at 1149. To
make such a showing, the alien “bears a ‘heavy burden,’ and must ‘present
evidence of such a nature that the [BIA] is satisfied that if proceedings before the
[IJ] were reopened, with all attendant delays, the new evidence offered would
likely change the result in the case.’” Ali v. U.S. Att’y Gen., 443 F.3d at 813.
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Evidence is “new” if it “was unavailable or could not have been presented at [the
applicant’s] former hearing” before an IJ. Verano-Velasco, 456 F.3d at 1377
(rejecting the government’s contention that evidence which became available prior
to the BIA’s decision was not “new” because it was material to the very crux of the
asylum application).
We conclude from the record here that the IJ and BIA did not abuse their
discretion by denying Fernandez’s motion to reopen. First, because the merits of
Fernandez’s potential § 240A claim were never examined by the IJ or the BIA, we
lack jurisdiction over his arguments regarding the substance of his potential claim.
Amaya-Artunduaga, 463 F.3d at 1249-50. Second, Fernandez failed to exhaust his
arguments that (i) the IJ applied the wrong standard of review, (ii) several letters
were new, material evidence, and (iii) he was eligible for voluntary departure,
because he did not raise them before the BIA. Id. Therefore, to the extent that he
discusses matters over which we do not have jurisdiction, we dismiss the petition.
Finally, we do have jurisdiction over Fernandez’s petition to the extent that
he challenges the denial of his motion to reopen. The background of his case
involves discussion of cancellation of removal under INA § 240A, which is a
discretionary determination that we ordinarily cannot review directly or through a
motion to reopen or to reconsider, but here neither the IJ nor the BIA ever
considered the merits of Fernandez’s potential claim because it appears that he
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never actually filed an application for relief. INA § 242(a)(2)(B)(i),
8 U.S.C. § 1252(a)(2)(B)(i); see Patel, 334 F.3d at 1262.
Fernandez presents some properly exhausted argument concerning his
motion to reopen, and, as noted above, we have jurisdiction to review that portion
of his petition. He does not explicitly state what he considers to be new evidence,
but mentions correspondence between counsel and immigration officials. He fails
to indicate, however, why those documents are material to the case or why they
could not have been introduced earlier in the proceedings, particularly because
several of the letters were dated before the IJ’s final deadline.
For the aforementioned reasons, we dismiss the petition in part, and deny the
petition, in part.
PETITION DISMISSED in part and DENIED in part.
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