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[DO NOT PUBLISH]
In the
United States Court of Appeals
For the Eleventh Circuit
____________________
No. 21-12183
Non-Argument Calendar
____________________
JOSE LEDEZMA,
Petitioner,
versus
U.S. ATTORNEY GENERAL,
Respondent.
____________________
Petition for Review of a Decision of the
Board of Immigration Appeals
Agency No. A095-096-434
____________________
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2 Opinion of the Court 21-12183
Before JORDAN, BRASHER, and JULIE CARNES, Circuit Judges.
PER CURIAM:
Petitioner Jose Ledezma, a native and citizen of Honduras,
appeals the denial by the Board of Immigration Appeals (the “BIA”)
of his motion to sua sponte reopen his removal proceeding. As
discussed below, this Court lacks jurisdiction to review the BIA’s
denial of sua sponte relief. Accordingly, we dismiss Petitioner’s ap-
peal.
BACKGROUND
Petitioner left Honduras and traveled to the United States in
September 1998. He crossed the United States border near
Brownsville, Texas, without presenting himself to immigration of-
ficials. Petitioner was served in October 2004 with a Notice to Ap-
pear that charged him with being present in the United States with-
out being admitted or paroled, in violation of INA § 212(a)(6)(A)(i).
After continuing Petitioner’s removal proceeding several times to
give him an opportunity to find an attorney, an IJ held a hearing in
Petitioner’s case on May 4, 2005, with Petitioner appearing pro se.
Petitioner admitted during his hearing that he did not have
a valid entry document when he entered the United States, and that
he did not present himself to an immigration officer upon his entry.
The IJ advised Petitioner that he was therefore removable and
asked him directly if there was any reason he should not be re-
turned to Honduras. Petitioner responded that he left Honduras
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21-12183 Opinion of the Court 3
because of gangs, that he had been pressured for recruitment and
physically harmed while in Honduras, and that he had come to the
United States to be with his father. The IJ observed that the United
States also had problems with gangs and, after inquiring whether
Petitioner had any other issues, asked the Government if it saw any
availability of relief. The Government suggested voluntary depar-
ture.
At the end of the hearing, the IJ found Petitioner removable
and granted voluntary departure. The IJ explained to Petitioner
that if he failed to depart from the United States before September
1, 2005, he would be subject to civil penalties and ineligible for ben-
efits under the INA for ten years, and that the only excuse for failing
to comply was exceptional circumstances beyond Petitioner’s con-
trol, such as a serious illness or the death of an immediate family
member in the United States. The IJ reserved Petitioner’s right to
appeal and provided him with the form used to file an appeal, along
with a list of agencies that provide representation in BIA appeals at
low or no cost. In its order, the IJ noted that Petitioner had testified
that he did not want to return to Honduras because gangs there
had tried to recruit him, but the IJ concluded that there was noth-
ing in Petitioner’s testimony “indicating any type of basis for [Peti-
tioner to file] an asylum application.”
Petitioner appealed the IJ’s order to the BIA and filed a pro
se brief in which he argued that he qualified for asylum and with-
holding of removal. In the brief, Petitioner defined—and exten-
sively quoted case law defining—the term “refugee” as used in the
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4 Opinion of the Court 21-12183
INA. He then argued that he qualified as a refugee because of the
gang crisis in Honduras. The BIA issued a decision in October 2006
dismissing Petitioner’s appeal. In its decision, the BIA acknowl-
edged Petitioner’s testimony that he could not return to Honduras
because he was afraid of gangs there. However, the BIA noted that
Petitioner had not submitted an I-589 application for asylum or
withholding of removal, either to the IJ or with the brief he sub-
mitted to the BIA.
In November 2018, more than twelve years after the final
order dismissing his BIA appeal, Petitioner filed a motion for the
BIA to sua sponte reopen his removal proceeding to allow him to
apply for asylum, withholding of removal, and relief under the
Convention Against Torture (“CAT”). In support of his motion,
Petitioner argued that he was not given the opportunity in his ini-
tial proceeding to file for asylum and that he was coerced to accept
voluntary departure when it was clear he feared returning to Hon-
duras. Petitioner noted that the BIA had authority to sua sponte
reopen any case in which it had rendered a decision, albeit such
authority could only be used in “exceptional circumstances” and
was not intended to “cure filing defects or circumvent [applicable]
regulations.” In conjunction with his motion to reopen, Petitioner
filed, for the first time, an I-589 application for asylum, withholding
of removal, and CAT relief, again asserting that he feared returning
to Honduras because of gang activity there and the possibility of
forced recruitment.
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21-12183 Opinion of the Court 5
The BIA determined that Petitioner’s motion to reopen was
untimely. As explained in the BIA’s decision, with certain excep-
tions, a motion to reopen a removal proceeding must be filed no
later than 90 days after the date of the agency’s final decision on
removal—which in Petitioner’s case occurred in October 2006. See
INA § 240(c)(7)(C)(i), 8 U.S.C. § 1229a(c)(7)(C)(i). Petitioner filed
his motion to reopen in November 2018, more than twelve years
after the BIA’s final decision in his proceeding. Petitioner did not
allege that his motion fell within any of the exceptions to the time
limitations applicable to a motion to reopen removal proceedings,
nor did he explain why he waited twelve years to file the motion.
The BIA concluded further that Petitioner had failed to
show an exceptional situation that warranted the exercise of its dis-
cretionary sua sponte reopening authority. Specifically addressing
Petitioner’s claim that he should have been given an opportunity
to apply for asylum before the IJ, the BIA noted that Petitioner had
not presented any argument that he was prima facie eligible for
asylum as it was not apparent that the harm he feared in Hondu-
ras—forced recruitment and harm by criminal gangs—would be on
account of a protected ground under the INA. For this reason, and
because of the untimeliness of Petitioner’s motion, the BIA de-
clined to reopen Petitioner’s removal proceeding sua sponte.
Petitioner appeals the BIA’s denial of his motion to sua
sponte reopen his removal proceeding to this Court. In support of
his appeal, Petitioner argues that the BIA erred when it declined to
exercise its sua sponte authority to reopen his removal proceeding,
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6 Opinion of the Court 21-12183
and that he is entitled to reopening based on due process and other
constitutional violations allegedly committed by the IJ in his initial
proceeding and compounded by the BIA on appeal.
DISCUSSION
“When the BIA issues a decision” in a case arising under the
INA, “we review only that decision, except to the extent the BIA
expressly adopts the IJ’s decision.” Lopez v. U.S. Att’y Gen.,
504
F.3d 1341, 1344 (11th Cir. 2007). We review the BIA’s decision on
a motion to reopen a removal proceeding for an abuse of discre-
tion. See Chacku v. U.S. Att’y Gen.,
555 F.3d 1281, 1286 (11th Cir.
2008). “This review is limited to determining whether the BIA ex-
ercised its discretion in an arbitrary or capricious manner.” Zhang
v. U.S. Att’y Gen.,
572 F.3d 1316, 1319 (11th Cir. 2009). “The mov-
ing party bears a heavy burden, . . . as motions to reopen are disfa-
vored, especially in removal proceedings.”
Id. (citation omitted).
We review questions concerning our own jurisdiction de novo.
Jeune v. U.S. Att’y Gen.,
810 F.3d 792, 799 (11th Cir. 2016).
As an initial matter, we note that Petitioner’s claim for relief
in this case hinges on the BIA’s authority under the INA to sua
sponte reopen removal proceedings “at any time.” See
8 C.F.R.
§ 1003.2(a). Under the INA, a petitioner also may file a “statutory”
motion to reopen his removal proceedings, but such a motion gen-
erally must be filed within 90 days of the final order of removal.
See INA § 240(c)(7)(A), (C), 8 U.S.C. § 1229a(c)(7)(A), (C). As dis-
cussed, Petitioner filed his motion to reopen more than twelve
years after the final order of removal in his case. The 90-day
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deadline for filing a motion to reopen is subject to certain excep-
tions and to equitable tolling. See Avila-Santoyo v. U.S. Att’y Gen.,
713 F.3d 1357, 1362–65 (11th Cir. 2013) (en banc). However, Peti-
tioner does not argue that any exception or equitable tolling applies
in this case, and he requested only sua sponte reopening in his mo-
tion to the BIA. Moreover, Petitioner does not argue in the briefing
he has filed in this Court that the BIA abused its discretion by de-
clining to exercise its statutory power to reopen his removal pro-
ceedings. Instead, Petitioner seeks review only of the BIA’s discre-
tionary decision not to exercise its sua sponte authority to reopen.
Under the INA and its governing regulations, the BIA has
the authority to reopen or reconsider a removal order sua sponte
at any time, with certain restrictions. See
8 C.F.R. § 1003.2(a).
“The BIA has broad discretion over motions for sua sponte reopen-
ing, . . . but it has held that it will exercise its authority only in ex-
ceptional circumstances.” Butka v. U.S. Att’y Gen.,
827 F.3d 1278,
1283 (11th Cir. 2016) (citation omitted). To satisfy the exceptional
circumstances standard, a petitioner must show, among other
things, “that there is a substantial likelihood that the result in [his]
case would be changed if reopening is granted.”
Id. (quotation
marks omitted). In this case, although the BIA acknowledged that
Petitioner had expressed a fear of returning to Honduras, it deter-
mined that his motion did not demonstrate an “exceptional situa-
tion that would warrant” sua sponte reopening because Petitioner
did not present “any argument that he is prima facie eligible for
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8 Opinion of the Court 21-12183
asylum, as it is not apparent that the harm he fears would be on
account of a protected ground” under the INA.
Petitioner argues that the BIA erred in holding that he did
not show exceptional circumstances, and in support of his argu-
ment he cites the IJ’s alleged (1) failure to hold an evidentiary hear-
ing concerning Petitioner’s fear of persecution, (2) failure to advise
Petitioner of his right to file for asylum or withholding of removal,
and (3) forcing Petitioner to accept voluntary departure when he
never requested that relief. We cannot—and do not—consider the
merits of Petitioner’s arguments because this Court has “squarely
held that it lack[s] jurisdiction to review a BIA decision denying a
petitioner’s motion for sua sponte reopening.”
Id. (citing Lenis v.
U.S. Att’y Gen.,
525 F.3d 1291, 1293 (11th Cir. 2008)). As the Court
explained in Butka, “judicial review is not available when agency
action is committed to agency discretion by law.” See Butka, 827
F.3d at 1283–84 (quotation marks omitted). Agency action is com-
mitted to agency discretion by law when “the statute at issue does
not provide a meaningful standard against which to judge the
agency’s exercise of discretion.” Id. (quotation marks omitted).
This Court concluded in Lenis, and reiterated in Butka, that “nei-
ther the INA nor
8 C.F.R. § 1003.2(a) provide[s] any standard to
govern the BIA’s exercise of its discretion to sua sponte reopen im-
migration proceedings.” See id. at 1284 (quotation marks omitted).
Petitioner notes that we “may have jurisdiction to review
colorable constitutional claims related to the BIA’s decision not to
exercise its sua sponte authority.” This Court has expressly left
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21-12183 Opinion of the Court 9
open the question of whether we may exercise jurisdiction over
constitutional claims related to the BIA’s decision on a motion for
sua sponte reopening. See id. But we have no occasion to rule on
that issue here because Petitioner does not assert a colorable con-
stitutional claim related to the BIA’s decision on his motion to reo-
pen. Although Petitioner argues that the IJ and the BIA violated
his due process and other constitutional rights in his initial removal
proceeding, he does not point to any constitutional error commit-
ted by the BIA in its ruling on the motion to reopen. With respect
to the motion to reopen, Petitioner’s argument is simply that the
BIA erred in failing to find that sua sponte reopening was war-
ranted in his case. That is an argument we lack jurisdiction to con-
sider. See Arias v. U.S. Att’y Gen.,
482 F.3d 1281, 1284 (11th Cir.
2007) (noting that a petitioner cannot create jurisdiction “simply by
cloaking an abuse of discretion argument in constitutional garb”).
As such, Petitioner’s appeal must be dismissed.
CONCLUSION
For the foregoing reasons, we DISMISS Petitioner’s appeal
for review of the BIA’s denial of his motion to reopen his removal
proceedings sua sponte for lack of jurisdiction.
PETITION DISMISSED
