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[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
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No. 19-14026
Non-Argument Calendar
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Agency No. A088-488-386
HOPE KAREKEZI,
ANDY MATHE,
SHAMMAH AIMEE KAREKEZI,
THULANI NKOSANA MATHE,
Petitioners,
versus
U.S. ATTORNEY GENERAL,
Respondent.
________________________
Petition for Review of a Decision of the
Board of Immigration Appeals
________________________
(April 16, 2020)
Before ROSENBAUM, BRANCH and LAGOA, Circuit Judges.
PER CURIAM:
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Hope Karekezi,1 a native and citizen of South Africa, seeks our review of
the Board of Immigration Appeals’ (“BIA”) denial of her third motion to reopen
her removal proceedings. Karekezi argues that the BIA abused its discretion when
it refused to reopen the proceedings based on (1) its sua sponte authority or (2) on
the changed country conditions and new material facts not previously available.
She further argues that she was deprived of procedural due process as “[t]he failure
to receive relief, in this case, amounts to a deprivation of a liberty interest.”
Because we lack jurisdiction over part of her petition and the BIA did not abuse its
discretion in denying the motion to reopen, we dismiss the petition in part and deny
it in part.
I. Background
Karekezi and her three children entered the United States from South Africa
in July 2007. Upon arrival at Hartsfield-Jackson International Airport in Atlanta,
Georgia, she told authorities that she came to the United States to apply for
asylum. In August 2007, the Department of Homeland Security (“DHS”) served
her with a notice to appear that charged her with inadmissibility to the United
States as: (1) an alien who, by fraud or willfully misrepresenting a material fact,
sought to procure a visa or admission into the United States, in violation of 8
1
Although Karekezi’s three children, Andy Mathe, Shammah Karekezi, and Thulani
Mathe, are also named as petitioners in this case, they sought relief strictly as derivatives of the
asylum application underlying Karekezi’s third motion to reopen.
2
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U.S.C. § 1182(a)(6)(C)(i); and (2) an alien who at the time of application for
admission, was not in possession of a valid, unexpired entry document, in violation
of 8 U.S.C. § 1182(a)(7)(A)(i)(1). She ultimately admitted the truth of the
allegations and sought asylum and withholding of removal based on fear that she
and her family were in danger if returned to South Africa. Specifically, she
asserted that she had received threats from what she believed were “Tutsi[] agents”
related to her husband who is a Hutu from Rwanda and had refugee status in South
Africa. The immigration judge found Karekezi inadmissible as charged, denied
her application for asylum and withholding of removal, and ordered her removed
to South Africa. The BIA affirmed that decision. We subsequently denied her
petition for review of the BIA’s decision. See Karekezi v. U.S. Att’y Gen., 380 F.
App’x 815 (11th Cir. 2010). Nevertheless, the removal order was not executed and
Karekezi and her children continued to live in the United States.
After two unsuccessful counseled motions to reopen the proceedings, 2 on
November 28, 2018, Karekezi filed a third counseled motion to reopen entitled
“sua sponte motion to reopen and stay of removal,” requesting that the BIA reopen
the proceedings due to changed country conditions, pursuant to 8 U.S.C.
§ 1229a(c)(7)(C)(ii), and the BIA’s sua sponte authority, pursuant to 8 C.F.R.
2
Karekezi previously filed a counseled motion to reopen on February 27, 2018, and
October 15, 2018, respectively, which were denied by the BIA, and are not the subject of this
appeal.
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§ 1003.2(a). As grounds for reopening, Karekezi asserted that: (1) one of her
children had applied for adjustment of status as a special immigrant juvenile, and
Karekezi should be permitted to remain in the United States with her child, and
(2) the existence of changed country conditions, namely, that Hutu members—a
group of which she would be considered a part because of her marriage to a
Hutu—are being persecuted as a group in South Africa. In support of her motion,
Karekezi submitted an affidavit in which she asserted that she feared persecution,
threats, and danger to her family if they are removed to South Africa due to
continued assassinations of Rwandan refugees and xenophobic attacks in South
Africa against immigrants and their families. She also submitted documentary
evidence, including news articles and country reports in support of her claims of
continued attacks against immigrants in South Africa.
The BIA denied the motion, concluding that Karekezi had “raised similar
arguments based on similar evidence in the initial removal proceedings” and failed
to meet her burden of presenting new, material evidence of changed country
conditions that demonstrates, if the proceedings were reopened, the new evidence
would likely change the result. Additionally, the BIA explained that sua sponte
reopening was also not warranted based on Karekezi’s child’s pending Special
Immigrant Juvenile Visa Petition. This appeal followed.
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II. Discussion
We first review de novo our subject matter jurisdiction. See Amaya-
Artunduaga v. U.S. Att’y Gen.,
463 F.3d 1247, 1250 (11th Cir. 2006). Generally,
we cannot review decisions that are committed to the discretion of the BIA. See
8 U.S.C. § 1252(a)(2)(B) (providing that no court shall have jurisdiction to review
discretionary denials of relief). The BIA has sua sponte authority to reopen or
reconsider any case in which it has rendered a decision at any time. See 8 C.F.R.
§ 1003.2(a). However, “[t]he decision to grant or deny a motion to reopen . . . is
within the discretion of the [BIA] . . . [and the BIA] has discretion to deny a
motion to reopen even if the party moving has made out a prima facie case for
relief.”
Id. Thus, we have repeatedly held that we lack jurisdiction to review a
decision of the BIA not to exercise its authority to reopen proceedings sua sponte.
See, e.g., Butka v. U.S. Att’y Gen.,
827 F.3d 1278, 1286 (11th Cir. 2016); Lenis v.
U.S. Att’y Gen.,
525 F.3d 1291, 1293–94 (11th Cir. 2008).
Despite this jurisdictional bar, we retain jurisdiction over constitutional
claims and questions of law raised in a petition for review. See 8 U.S.C.
§ 1252(a)(2)(D) (“Nothing in subparagraph (B) or (C), or in any other provision of
this chapter (other than this section) which limits or eliminates judicial review,
shall be construed as precluding review of constitutional claims or questions of law
raised upon a petition for review filed with an appropriate court of appeals in
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accordance with this section.”); see also
Lenis, 525 F.3d at 1294 n.7 (“We note, 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.”).
Additionally, we have jurisdiction to review the denial of a motion to reopen
that the BIA denied pursuant to the statutory requirements for a motion to reopen,
even where the BIA also states that it will not exercise its sua sponte authority to
reopen. See Mata v. Lynch,
135 S. Ct. 2150, 2154–55 (2015) (explaining that
“[w]hether the BIA rejects the alien’s motion to reopen because it comes too late
or because it falls short in some other respect, the courts have jurisdiction to review
that decision. Similarly, that jurisdiction remains unchanged if the [BIA], in
addition to denying the alien’s statutorily authorized motion, states that it will not
exercise its separate sua sponte authority to reopen the case.”); see also Bing Quan
Lin v. U.S. Att’y Gen.,
881 F.3d 860, 870–71 (11th Cir. 2018) (discussing Mata
and this Court’s jurisdiction in the context of a motion to reopen that was denied
based on statutory grounds as well as the BIA’s refusal to exercise its sua sponte
authority).
The BIA’s denial of a motion to reopen is reviewed for an abuse of
discretion. Ali v. U.S. Att’y Gen,
443 F.3d 804, 808 (11th Cir. 2006). We limit our
review “to determining whether there has been an exercise of administrative
discretion and whether the matter of exercise has been arbitrary or capricious.”
Id.
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(quoting Abdi v. U.S. Att’y Gen.,
430 F.3d 1148, 1149 (11th Cir. 2005)).
Generally, only one motion to reopen is allowed, and it must be filed within 90
days of the date of the final removal order. See 8 U.S.C. § 1229a(c)(6)(A),
(7)(C)(i). Nevertheless, these time and numerical limitations do not apply if the
purpose of the motion to reopen is to reapply for asylum or withholding of removal
based on material evidence of changed country conditions in the country of
removal that could not have been produced at the previous hearing.
Id.
§1229a(c)(7)(C)(ii). However, “[a]n alien cannot circumvent the requirement of
changed country conditions by demonstrating only a change in her personal
circumstances.” Zhang v. U.S. Att’y Gen.,
572 F.3d 1316, 1319 (11th Cir. 2009).
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.” 8 U.S.C. § 1229a(c)(7)(A), (B). “The moving party bears a
heavy burden, as motions to reopen are disfavored, especially in removal
proceedings.”
Zhang, 572 F.3d at 1319 (internal citations omitted). To meet this
burden, the alien “must present evidence that demonstrates that, if the proceedings
were opened, the new evidence would likely change the result in the case.” Jiang
v. U.S. Att’y Gen.,
568 F.3d 1252, 1256 (11th Cir. 2009).
Here, as an initial matter, to the extent Karekezi argues that the BIA abused
its discretion, or otherwise erred, in refusing to exercise its sua sponte authority to
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reopen the proceedings, we lack jurisdiction to review this claim. See
Butka, 827
F.3d at 1286;
Lenis, 525 F.3d at 1293–94. And while we generally retain
jurisdiction to review constitutional claims, Karekezi has provided no supporting
argument or authority for her contention that the BIA violated her right to
procedural due process. Thus, we conclude she has abandoned this argument.3
See Lapaix v. U.S. Att’y Gen.,
605 F.3d 1138, 1145 (11th Cir. 2010) (“Generally,
when an appellant fails to offer argument on an issue, that issue is deemed
abandoned. Passing references to issues are insufficient to raise a claim for
appeal.”). Accordingly, the portion of her petition challenging the BIA’s refusal to
exercise its sua sponte authority to reopen the proceedings is dismissed.
We do, however, have jurisdiction to review the BIA’s denial of her motion
to reopen based on changed country conditions. See
Mata, 135 S. Ct. at 2154–55;
Bing Quan
Lin, 881 F.3d at 871. The BIA reviewed the new evidence Karekezi
submitted, but concluded that it did not demonstrate that, if the proceedings were
reopened, the new evidence would likely change the result of the case. This
conclusion was not an abuse of discretion, particularly in light of the fact that
3
Karekezi asserts that she was deprived of procedural due process as “[t]he failure to
receive relief, in this case, amounts to a deprivation of a liberty interest.” Notably, even if she
had sufficiently raised this claim on appeal, it would fail on the merits, as “[p]rocedural due
process claims must assert a deprivation of a constitutionally protected liberty or property
interest. And, we have previously held that there is ‘no constitutionally protected interest in
purely discretionary forms of relief[,]’” including motions to reopen. Bing Quan
Lin, 881 F.3d at
868–69.
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Karekezi sought asylum and withholding of removal based on similar arguments
and similar evidence during her initial removal proceedings, which the BIA
determined did not establish a well-founded fear of future persecution and we
affirmed. See Karekezi, 380 F. App’x at 818. Karekezi’s supporting affidavit
attached to her motion to reopen does not establish changed country conditions in
South Africa, but instead shows that she faces the same fear of persecution that she
did at the time of her initial removal hearing in 2007. Likewise, the news articles
and other supporting documentation submitted by Karekezi did not demonstrate
changed country conditions.4 Indeed, none of those documents specifically discuss
any violence directed toward Rwandan Hutus in South Africa. Rather, the
documents refer to generalized xenophobic violence against foreign nationals in
South Africa, which the documents indicate has been ongoing since the mid-
1990’s and early 2000’s, with most of the recent violence directed at foreign
nationals from Somalia, Bangladesh, Mozambique, Nigeria, Malawi, and
Zimbabwe. Accordingly, Karekezi’s evidence did not address prevailing
conditions in South Africa with regard to Hutu refugees or their families, much
less evince a change in those conditions. At most, the evidence demonstrated that
4
We note that Karekezi’s child’s pending application for adjustment of status as a special
immigrant juvenile could not serve as a change in circumstances for purposes of a motion to
reopen the proceedings. See Zhang v. U.S. Att’y Gen.,
572 F.3d 1316, 1319 (11th Cir. 2009)
(“An alien cannot circumvent the requirement of changed country conditions by demonstrating
only a change in her personal circumstances.”).
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South Africa continues to experience xenophobic violence, a condition which
existed at the time of Karekezi’s initial removal proceedings. As such, the evidence
failed to demonstrate “that, if the proceedings were opened, the new evidence
would likely change the result of the case.”
Jiang, 568 F.3d at 1256–57.
Accordingly, the BIA did not abuse its discretion in denying her third motion to
reopen, and this ground of Karekezi’s petition is denied.
PETITION DISMISSED IN PART AND DENIED IN PART
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