Joao Augusto Tatagiba v. U.S. Attorney General , 529 F. App'x 991 ( 2013 )

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[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
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No. 12-15666
Non-Argument Calendar
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Agency No. A099-385-022
JOAO AUGUSTO TATAGIBA,
Petitioner,
versus
U.S. ATTORNEY GENERAL,
Respondent.
__________________________
Petition for Review of a Decision of the
Board of Immigration Appeals
_________________________
(September 11, 2013)
Before MARTIN, JORDAN, and FAY, Circuit Judges.
PER CURIAM:
Joao Tatagiba, a citizen of Brazil, seeks review of an order by the Board of
Immigration Appeals denying his motions to reopen removal proceedings and
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reconsider its earlier decision. Because Mr. Tatagiba's motions were untimely
filed, without any basis for granting an exception to the filing deadlines, we find no
abuse of discretion by the Board and, therefore, deny Mr. Tatagiba's petition.
On December 2, 2008, Mr. Tatagiba filed an application for cancellation of
an order of removal, arguing that certain exceptional and extremely unusual
hardships would befall his children if removed to Brazil. See A.R. 231. The
Immigration Judge denied the application, and that denial was affirmed by the
Board on August 26, 2010. Mr. Tatagiba's first motion for reconsideration was
denied by the Board on May 10, 2011. This Court, citing lack of jurisdiction to
review the underlying order of removal, dismissed Mr. Tatagiba's petition for
review of the Board's denial of the motion for reconsideration. See Tatagiba v.
U.S. Att'y Gen., No. 11-12292 (11th Cir. Feb. 8, 2012).
On June 8, 2012, Mr. Tatagiba filed a motion with the Board to reopen the
removal proceedings and reconsider its earlier 2011 decision. On October 25,
2012, the Board denied Mr. Tatagiba's motions as untimely. Mr. Tatagiba timely
filed the instant petition for review.
In his brief, Mr. Tatagiba cursorily argues that the Board violated his due
process rights by improperly applying the law when analyzing his "hardship"
claim. Additionally, Mr. Tatagiba argues that a recent policy change within the
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Department of Homeland Security, allowing for the exercise of prosecutorial
discretion to suspend certain deportation proceedings, would beneficially affect the
outcome of his proceedings if reopened and reconsidered.
We review the Board's denial of a motion to reopen removal proceedings for
an abuse of discretion, see Jiang v. U.S. Att'y Gen., 568 F.3d 1252, 1256 (11th Cir.
2009), and the same standard applied to the Board's denial of a motion to
reconsider, see Assa'ad v. U.S. Att'y Gen., 332 F.3d 1321, 1341 (11th Cir. 2003).
Although the Board has plenary discretion to reopen a proceeding sua sponte, we
lack jurisdiction to review the exercise of that discretion. See Lenis v. U.S. Att'y
Gen., 525 F.3d 1291, 1292-94 (11th Cir. 2008).
Generally, a motion to reopen must be filed within 90 days of the final
administrative removal order. See 8 U.S.C. § 1229a(c)(7)(C)(i). Exceptions to this
time limitation include situations where the motion is filed: (1) to rescind an in
abstentia removal order due to exceptional circumstances or lack of notice; (2) to
apply for relief based on changed circumstances in the applicant's country; (3) with
the agreement of all parties; or (4) by DHS when the basis of the motion is fraud in
the original proceeding or a crime that would support termination of asylum. See 8
C.F.R. § 1003.2(c)(3)(i)-(iv). A motion to reconsider must be filed within 30 days
of the entry of the Board's final decision. See 8 U.S.C. § 1229a(c)(6)(B).
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Mr. Tatagiba filed his motions to reopen and reconsider on June 8, 2012, in
excess of the 30-day limit for motions for reconsideration and the 90-day limit for
motions to reopen. Moreover, Mr. Tatagiba did not explain why his untimely
motion to reopen should otherwise be permitted under an exception to the statutory
limitation. Therefore, both motions were untimely filed and, as such, we find no
abuse of discretion in the Board's denials. See Mejia Rodriguez v. Reno, 178 F.3d
1139, 1145 (11th Cir. 1999) (finding no abuse of discretion where the Board
"simply rejected Mejia's attempts to reopen his deportation proceedings because
Mejia's motions to reopen were filed long after the expiration of the time period for
filing motions to reopen under the BIA's regulations"). To the extent Mr. Tatagiba
requests us to review the Board's failure to reopen the proceedings sua sponte, we
lack such jurisdiction. Accordingly, we deny Mr. Tatagiba's petition for review.
PETITION DENIED.
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