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[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
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No. 20-12948
Non-Argument Calendar
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Agency No. A073-611-873
LUIS ALFONSO DUARTE-RODRIGUEZ,
Petitioner,
versus
U.S. ATTORNEY GENERAL,
Respondent.
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Petition for Review of a Decision of the
Board of Immigration Appeals
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(July 27, 2021)
Before JILL PRYOR, LUCK, and BRASHER, Circuit Judges.
PER CURIAM:
Luis Alfonso Duarte-Rodriguez seeks review of a decision by the Board of
Immigration Appeals (the “BIA”) denying his motion for sua sponte
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reconsideration. Upon consideration, we dismiss his petition for a lack of
jurisdiction.
I.
Duarte-Rodriguez is a native and citizen of Colombia who entered the United
States in 1993 without admission or parole. Several years later, the Department of
Homeland Security issued a notice to appear that charged Duarte-Rodriguez as
removable under the Immigration and Nationality Act. Duarte-Rodriguez eventually
applied for cancellation of removal and adjustment of status for certain non-
permanent residents. In his application, he asserted that his removal would result in
exceptional and extremely unusual hardship to his daughter, who was an American
citizen. The immigration judge denied Duarte-Rodriguez’s application. The
immigration judge concluded that Duarte-Rodriguez’s daughter would not suffer
exceptional and extremely unusual hardship because she was healthy and adaptable
and would be able to receive adequate education if she left the country with her
father.
Duarte-Rodriguez appealed the denial of his application to the BIA, which
affirmed the immigration judge’s decision. Nearly four years later, Duarte-
Rodriguez moved to reopen his removal proceedings based on previously
unavailable evidence. He attached to his motion a mental health evaluation
diagnosing his daughter with certain clinical disorders. The BIA denied his motion
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on the grounds that it was untimely under
8 C.F.R. § 1003.2(c)(3), that no exception
to the filing deadline applied, and that there was no truly exceptional situation
present to warrant sua sponte reopening of the case.
Duarte-Rodriguez petitioned this Court for review of the BIA’s denial of his
motion to reopen, but it dismissed his petition for lack of jurisdiction. Duarte-
Rodriguez then moved the BIA to reconsider its denial of his motion to reopen. The
BIA denied his motion for reconsideration, and Duarte-Rodriguez petitioned this
Court for review of the BIA’s denial. The United States Attorney General moved to
dismiss Duarte-Rodriguez’s petition for lack of jurisdiction, and this Court ordered
that the motion to dismiss be carried with the case.
II.
We review our subject-matter jurisdiction over a petition from the BIA de
novo. See Bing Quan Lin v. U.S. Att’y Gen.,
881 F.3d 860, 866 (11th Cir. 2018)
(citing Amaya–Artunduaga v. U.S. Att’y Gen.,
463 F.3d 1247, 1250 (11th Cir.
2006)).
III.
Duarte-Rodriguez argues that in denying his motion for reconsideration, the
BIA (1) abused its discretion in rejecting the arguments raised in his motion to
reopen and his motion for reconsideration, (2) misunderstood the basis of his motion
for reconsideration and did not afford reasoned consideration to the new evidence
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that he had offered, and (3) violated his constitutional due process right to receive a
full and fair hearing. In response, the Attorney General reiterates its position from
its motion to dismiss and argues that we lack jurisdiction over Duarte-Rodriguez’s
petition. We agree with the Attorney General.
“The BIA has the authority to reopen removal proceedings sua sponte at any
time,” and “[a] petitioner can file a written motion in the BIA” requesting it “to
exercise its sua sponte authority.” Butka v. U.S. Att’y Gen.,
827 F.3d 1278, 1283
(11th Cir. 2016) (citing
8 C.F.R. § 1003.2(a)). But we “lack[] jurisdiction to review
a BIA decision denying a petitioner’s motion for sua sponte reopening,” even where
a petitioner alleges legal error.
Id. at 1283, 1285–86 (citing Lenis v. U.S. Att’y Gen.,
525 F.3d 1291, 1292, 1294 (11th Cir. 2008)). This jurisdictional limitation also
applies to our review of the BIA’s denial of a petitioner’s motion for sua sponte
reconsideration. See
8 C.F.R. § 1003.2(a) (addressing motions to reopen and motions
to reconsider together and subjecting them to the same procedural requirements).
However, we have noted that there may be a possible exception to this
jurisdictional limitation for constitutional claims. See Butka, 827 F.3d at 1285–86
(citing Lenis,
525 F.3d at 1294 & n.7). Even then, a petitioner must allege “at least
a colorable constitutional violation,” lest it create “jurisdiction that Congress chose
to remove simply by cloaking an abuse of discretion argument in constitutional
garb.” See Arias v. U.S. Att’y Gen.,
482 F.3d 1281, 1284 (11th Cir. 2007). “For a
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constitutional claim to be colorable, the alleged violation need not be substantial, but
the claim must have some possible validity.”
Id. at 1284 n.2. (internal quotation
marks omitted).
Here, the BIA denied Duarte-Rodriguez’s motion for sua sponte
reconsideration, and his sole allegation of a constitutional violation—that the BIA
violated his constitutional due process right to receive a full and fair hearing—is not
colorable. We have held that “[t]he decision to grant or deny a motion to reopen or
a motion to reconsider” is within the BIA’s “very broad” discretion. Scheerer v. U.S.
Att’y Gen.,
513 F.3d 1244, 1253 (11th Cir. 2008). For that reason, a petitioner cannot
prevail on a due process claim seeking reopening or reconsideration “because he has
no constitutionally protected interest in purely discretionary forms of relief.”
Id.
Consequently, Duarte-Rodriguez has failed to allege any colorable constitutional
violations on appeal, and we therefore lack jurisdiction to review the BIA’s decision.
IV.
For the reasons stated above, we GRANT the Attorney General’s motion to
dismiss and DISMISS Duarte-Rodriguez’s petition. All pending motions are
DENIED as moot.
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