Bing Quan Lin v. U.S. Attorney General , 881 F.3d 860 ( 2018 )

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[PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
________________________
No. 17-10834
________________________
Agency No. A070-651-451
BING QUAN LIN,
Petitioner,
versus
U.S. ATTORNEY GENERAL,
Respondent.
________________________
Petition for Review of a Decision of the
Board of Immigration Appeals
________________________
(January 31, 2018)
Before MARCUS and NEWSOM, Circuit Judges, and MOORE, ∗ District Judge.
MARCUS, Circuit Judge:
∗
Honorable William T. Moore, Jr., United States District Judge for the Southern District of
Georgia, sitting by designation.
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Petitioner Bing Quan Lin seeks review of a decision of the Board of
Immigration Appeals (“BIA”) denying his motion to reopen removal proceedings.
On appeal, Lin raises a variety of claims -- some properly before this Court; some
not. As for Lin’s constitutional claims, those challenging the order of removal
itself, and those addressing the sufficiency of the Immigration Judge’s order
denying the instant motion, the issues were not properly exhausted in immigration
proceedings or are otherwise not properly before us, barring our review. As for
Lin’s remaining claims challenging the BIA’s decision, we cannot say that the BIA
abused its discretion or that its opinion lacked reasoned consideration when it
denied Lin’s motion to reopen. Therefore, the petition must be dismissed in part
and denied in part.
I.
A.
This case arises out of removal proceedings initiated by the Attorney
General against Lin, a native and citizen of China. Lin entered the United States
on December 16, 1991. He has presented materials suggesting that he entered at
Honolulu, where he was issued an Alien Registration Number (“A-number”) and a
form I-122 instructing him to appear before an Immigration Judge (“IJ”) at a time
“to be determined later.” The form gives the name of the applicant for admission
as “Ping Chuan LIN.” An “Order to Appear [for] Deferred Inspection,” scheduling
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a hearing on December 17, 1991, also appears in the Administrative Record. In
addition, a fingerprint card taken in Honolulu on December 16, 1991, bears the A-
number assigned on the I-122 form, the name “LIN Ping Chuan,” and a birthdate
of April 1, 1955. Lin claims that he did not understand he was to appear before the
Immigration Judge; instead he boarded a plane bound for New York City.
In March 1993, Lin sought asylum. He says the application paperwork was
prepared for him by an unlicensed practitioner of law. The asylum application
gives Lin’s name as “Lin, Bing Quan” and his date of birth as April 1, 1956. That
form lists Lin’s place and date of arrival in the United States as Hawaii, December
16, 1991. The application leaves blank spaces for the applicant’s A-number, for
“[o]ther names used,” and for the signature of any preparer. It also gives Lin’s
immigration status as “E.W.I.,” meaning “entered without inspection.” Lin was
issued a new A-number in connection with his asylum application. The application
was unsuccessful. In June 1997, a Notice to Appear in removal proceedings was
issued to Lin for a hearing on December 23, 1997. The Notice to Appear charged
Lin with being “an alien present in the United States who has not been admitted or
paroled.” Notice was mailed to an address in Charlotte, North Carolina, and was
returned marked unclaimed. Lin did not appear at that hearing either and was
ordered removed in absentia.
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Lin timely filed a motion to reopen the removal proceedings, his first motion
to reopen. Lin claims this motion was also prepared by an unlicensed practitioner
of law and that he did not understand its contents. The 1998 motion to reopen was
denied by the Immigration Judge because Lin failed to appear at the hearing after
being given proper notice, did not provide any reasons for his failure to appear, and
demonstrated no exceptional circumstances otherwise warranting reopening. Lin
did not appeal the decision denying his first motion to reopen.
Lin continued to reside in the United States. In February 2014, the
government approved an I-130 application,1 filed by Lin’s U.S.-citizen son, for
adjustment of Lin’s immigration status. That application was filed under the A-
number issued in connection with Lin’s asylum application. Notably, Lin would
not be eligible to pursue an adjustment of his status if he had entered the United
States without inspection. Rather, in order to be eligible, Lin must have been
paroled into the United States. 8 U.S.C. § 1255 (making adjustment of status
available to “an alien who was inspected and admitted or paroled into the United
States,” 8 U.S.C. § 1255(a), or for those entering the United States without
inspection who are the beneficiary of an application for adjustment of status filed
“on or before April 30, 2001,” 8 U.S.C. § 1255(i)(1)(B), which Lin is not).
1
Approval of an I-130 “Petition for Alien Relative” is the first step in obtaining lawful
permanent resident status through a U.S.-citizen family member. See, e.g., I-130, Petition for
Alien Relative, U.S. Citizenship and Immigration Servs., https://www.uscis.gov/i-130 (Sept. 7,
2017).
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Having received approval of the I-130, in 2014 Lin filed his second motion
to reopen removal proceedings. This time, Lin argued, and attached an affidavit
attesting, that he had been paroled into the United States and given an A-number
under the erroneously spelled name “Ping Chuan” Lin. Because he had been
issued an A-number in connection with that entry, Lin said, and had become an
applicant for admission placed in exclusion proceedings, it was inappropriate to
order him removed under the subsequently assigned A-number. An Immigration
Judge denied Lin’s second motion to reopen, finding that there was “[n]o evidence
. . . submitted to establish” that Lin was indeed the “Ping Chuan” who had entered
the country in 1991, that Lin’s affidavit did “not track” the record in his case, and
that Lin was a fugitive from justice because he had failed to inform the court of his
whereabouts.
Lin then filed his third motion to reopen in February 2016, offering similar
arguments about why reopening was appropriate. He included an updated affidavit
and a fingerprint analysis showing that fingerprints taken from the person who had
entered at Honolulu as “Ping Chuan” Lin matched his own.
B.
In May 2016, an Immigration Judge denied Lin’s third motion to reopen his
removal proceedings. The handwritten notations on the IJ’s denial of the motion
are limited in scope but legible. These notations explain that “no appeal was
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taken” from the denial of Lin’s two previous motions to reopen. The additional
notations appear to read as follows: “On 2/8/16 a third motion to reopen was
filed -- renewing argument denied in 2nd [motion to reopen] (no appeal)[.] This
will be denied as untimely [and] because of previously filed motions[.] 8 CFR §
1003.23(b)[illegible][.] 2 No showing evidence [and] argument was not previously
available[.]” 3 Although a box is checked that explains the motion is denied “for
the reasons indicated in the attached decision,” no additional decision, separate
from the grounds handwritten on the form itself, appears in the certified
Administrative Record.
Lin lodged an appeal with the Board of Immigration Appeals. The BIA
denied his application in February of this year, explaining the history of Lin’s
entry, asylum application, and previously denied motions. The BIA agreed with
the Immigration Judge’s judgment and reasoning. It too specifically concluded
that “[Lin]’s additional arguments in his third motion to reopen were not new or
2
In context, this notation almost certainly references 8 C.F.R. § 1003.23(b)(1) (“[A] party may
file only . . . one motion to reopen proceedings. . . . A motion to reopen must be filed within 90
days of the date of entry of a final administrative order of removal . . . .”).
3
The regulations governing motions to reopen provide that: “A motion to reopen proceedings
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 and other evidentiary material. . . . A motion to reopen will not
be granted unless the Immigration Judge is satisfied that evidence sought to be offered is
material and was not available and could not have been discovered or presented at the former
hearing.” 8 C.F.R. § 1003.23(b)(3).
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previously unavailable.” The BIA also determined that there was no basis for it to
have reopened sua sponte its removal proceedings.
This appeal ensued.
II.
First, we must determine whether the Court has the power to entertain each
of petitioner’s claims. See, e.g., Cadet v. Bulger, 377 F.3d 1173, 1179 (11th Cir.
2004) (“Federal courts ‘are obligated to inquire into subject-matter jurisdiction sua
sponte whenever it may be lacking.’” (quoting Galindo-Del Valle v. Att’y Gen.,
213 F.3d 594, 599 (11th Cir. 2000))). “We review our subject matter jurisdiction
de novo.” Amaya-Artunduaga v. U.S. Att’y Gen., 463 F.3d 1247, 1250 (11th Cir.
2006).
A petitioner contesting a final order of removal must exhaust the
administrative immigration process before he may be heard in federal court. 8
U.S.C. § 1252(d)(1) (“A court may review a final order of removal only if . . . the
alien has exhausted all administrative remedies available to the alien as of right.”
(emphasis added)). We have held that failure to raise an issue to the BIA
constitutes a failure to exhaust. See Jeune v. U.S. Att’y Gen., 810 F.3d 792, 800
(11th Cir. 2016) (“[W]hen a petitioner has neglected to assert an error before the
BIA that he later attempts to raise before us, the petitioner has failed to exhaust his
administrative remedies.” (citing Amaya-Artunduaga, 463 F.3d at 1250–51)). This
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Court has also determined that the failure to exhaust is jurisdictional, “so we lack
jurisdiction to consider claims that have not been raised before the BIA.” Sundar
v. I.N.S., 328 F.3d 1320, 1323 (11th Cir. 2003); see also Amaya-Artunduaga, 463
F.3d at 1250 (citing Sundar, 328 F.3d at 1323); Indrawati v. U.S. Att’y Gen., 779
F.3d 1284, 1297 (11th Cir. 2015) (citing Amaya-Artunduaga, 463 F.3d at 1250).
Thus, while we are obliged to consider those issues that have been properly
presented in immigration proceedings and, where necessary, appealed to the Board
of Immigration Appeals, we cannot consider issues that could have been, but were
not properly raised in immigration proceedings and appealed to the BIA.
Here, Lin asserts a number of errors in the disposition of his third motion to
reopen his removal proceedings as well as in his other motions and in the order of
removal itself. However, we lack jurisdiction over Lin’s constitutional claims as
well as any of the claims unrelated to the third motion to reopen. Plainly, Lin’s
constitutional claims were of the kind that could have been raised in his
immigration proceedings, but he failed to exhaust them. Likewise, we are barred
from reviewing petitioner’s claims that the Immigration Judge’s decision was
deficient because it was handwritten and briefly stated, since those claims were
never presented to the BIA. Moreover, we cannot consider petitioner’s challenges
to the order of removal or to the denial of his motions to reopen in 1998 and again
in 2014 because he never appealed from any of them.
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A.
Lin claims that his removal has been ordered in violation of the Fifth
Amendment Due Process Clause. First, he says that he never received notice of
the 1997 removal hearing. Second, he says the Immigration and Naturalization
Service (“INS”) failed to follow its own policy to search its records thoroughly for
a previous A-number. Lin also asserts that this failure to follow agency policy
makes the BIA’s refusal to reopen sua sponte legally incorrect, reasoning that “due
process requires that proceedings improvidently commenced may be terminated at
any time.” Finally, he contends that “[a]n Order of Removal which is premised on
a false allegation and which produces an unjust result violates due process.”
Although constitutional claims sometimes may avoid the requirement of
administrative exhaustion, Lin’s constitutional arguments were subject to an
exhaustion requirement and undeniably were not exhausted. Accordingly, we lack
the power to consider them.
The administrative exhaustion requirement may not always prevent
consideration of certain constitutional claims that a petitioner has not asserted in
immigration proceedings. Thus, we have suggested that “some classes of claims”
arising under the immigration laws and alleging constitutional error are not subject
to a requirement of administrative exhaustion, while others are. A panel of this
Court has explained:
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Some courts have indicated in dicta that constitutional challenges to
the [Immigration and Nationality Act] and INS procedures and some
due process claims do not require exhaustion, because the BIA does
not have the power to adjudicate those claims. Those same courts,
however, have held that where the claim is within the purview of the
BIA which can provide a remedy, the exhaustion requirement applies
with full force.
Sundar, 328 F.3d at 1325 (internal citations omitted).
Where a procedural due process claim properly falls within the immigration
courts’ power to review and provide a remedy, the claim must be exhausted before
it can be considered by this Court. See, e.g., id.; see also Amaya-Artunduaga, 463
F.3d at 1251 (“Although we have never specifically determined which due process
claims require exhaustion, other circuits have determined that procedural due
process claims, as well as procedural errors argued in due process terms, must be
raised before the BIA [to be considered on appeal].”). We have applied that
principle and declined to review a due process claim raised for the first time in this
Court. Thus, in Amaya-Artunduaga, we determined that the petitioner’s due
process claim, regarding the fairness of the Immigration Judge as a neutral
factfinder, was “precisely the kind of procedural error which requires exhaustion.”
463 F.3d at 1251. Notably, however, those constitutional claims raised for the first
time in this Court that address issues beyond the power of the BIA to address in
adjudicating an individual’s case may not require exhaustion. See, e.g., Haitian
Refugee Ctr., Inc. v. Nelson, 872 F.2d 1555, 1561 (11th Cir. 1989).
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Applying these principles, we hold that Lin was required to administratively
exhaust his constitutional claims before raising them in this Court. Each claim is
the kind of particularized challenge to process in individual case review that we’ve
deemed subject to the exhaustion requirement in Amaya-Artunduaga. Each of his
claims could have been addressed by the BIA. He finds constitutional error in the
notice issued in his immigration proceedings, in the failure to search records in his
immigration proceedings, and in the refusal to reopen in his immigration
proceedings. None of these claims raises a larger challenge to the immigration
process beyond the power of the BIA to address.
Since Lin’s constitutional claims were subject to an exhaustion requirement,
we readily conclude that he has not exhausted them. When determining whether
exhaustion has occurred, we look to the “substance of the appeal.” Indrawati, 779
F.3d at 1298 (“[A]dministrative exhaustion requires no specific incantation.”).
While there need not have been a “well-developed” legal argument to support a
claim, Lin must have offered “more than . . . a passing reference to the issue” in
order to show he properly exhausted each claim. Jeune, 810 F.3d at 800. There
must have been enough of an argument to enable the BIA to consider the issue.
See id. An examination of this record, however, reveals nothing that would have
clearly flagged to the BIA for its consideration the issues Lin has now raised in this
Court. His memorandum on appeal to the BIA did challenge the proceedings to
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which Lin was subject, arguing that it was “procedurally improper” to place Lin in
removal proceedings. However, that argument makes no mention of due process,
the Constitution, or the constitutional claims presented to us concerning notice and
agency procedures.
But even if Lin had raised some constitutional claim regarding the failure to
grant Lin’s motion to reopen over which we could exert jurisdiction, any such
claim would still fail on its own terms. Procedural due process claims must assert
a deprivation of a constitutionally protected liberty or property interest. See, e.g.,
Mathews v. Eldridge, 424 U.S. 319, 332 (1976). And, we have previously held
that there is “no constitutionally protected interest in purely discretionary forms of
relief.” Scheerer v. U.S. Att’y Gen., 513 F.3d 1244, 1253 (11th Cir. 2008). What’s
more, we have specifically identified both motions to reopen and adjustment of
status as discretionary forms of relief as to which there is no constitutionally
protected interest. Id. (“The decision to grant or deny a motion to reopen or a
motion to reconsider is within the discretion of the BIA, and we have recognized
that this discretion is very broad. Adjustment of an alien’s status likewise is a
discretionary form of relief. We have held that the failure to receive relief that is
purely discretionary in nature does not amount to a deprivation of a liberty
interest.” (internal citation and quotation omitted)).
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Because the kinds of constitutional claims raised are subject to an exhaustion
requirement, and because Lin has failed to exhaust his constitutional claims before
the BIA, we are without the power to consider them.
B.
Lin also objects to the sufficiency of the Immigration Judge’s decision.
First, he seems to suggest that there was, or should have been, a more formal
decision from the Immigration Judge because the order in the Administrative
Record says that it was entered “for the reasons indicated in the attached decision,”
although nothing was apparently physically attached to the copy of the order. He
also attacks the rationale offered by the IJ as not constituting “reasoned
consideration” of his claims -- both because the reasons are insufficiently
explained and because the reasons fail to address the “crux” of Lin’s argument.
We cannot exercise jurisdiction over Lin’s claims of error about the
sufficiency of the Immigration Judge’s reasoning. As the government points out,
this Court cannot review those claims if they were not administratively exhausted
in the first place by appeal to the BIA. Lin’s arguments about the sufficiency of
the IJ’s reasoning and the purportedly missing “attached” reasoning were never
raised in the BIA and have not been administratively exhausted. Again, the
petitioner need not show a completely developed argument, but he must present
enough to flag the issue and enable the BIA to address the matter. See Jeune, 810
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F.3d at 800. And, there is nothing in the record to indicate that Lin attempted,
even with a passing reference, to raise the sufficiency of the Immigration Judge’s
notations to the BIA. In his Notice of Appeal to the BIA, Lin did argue that “[t]he
IJ did not discuss whether the decision to deny the motion will prejudice [Lin].”
However, that claimed shortcoming -- failing to address the issue of prejudice -- is
not raised in this appeal. No other arguments in Lin’s Notice of Appeal to the BIA
or in his legal memorandum filed with the BIA assert any error in the sufficiency
of the Immigration Judge’s order. Thus, to the extent Lin claims that the
Immigration Judge’s order reflected inadequate consideration or insufficient
explanation, we cannot examine that claim. In contrast, as we discuss below, we
have the power to consider whether the BIA’s decision and acceptance of the
Immigration Judge’s decision constituted “reasoned consideration” of the issues
brought to the BIA.
However, even if we could review Lin’s claim that the Immigration Judge
gave insufficient reasoning, it would fail on the merits. The decision of an
Immigration Judge must “consider the issues raised and announce [a] decision in
terms sufficient to enable a reviewing court to perceive that [the Judge] has heard
and thought and not merely reacted.” Tan v. U.S. Att’y Gen., 446 F.3d 1369, 1374
(11th Cir. 2006) (quotation omitted). The notations of the Immigration Judge do
enable us to perceive that Lin was heard and that a determination was reached that
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appropriately took into consideration the factual and legal matters relevant to the
motion.
C.
Finally, to the extent Lin asks this Court to reconsider the propriety and
substance of his longstanding removal order and the first and second motions to
reopen that order, we cannot engage in that inquiry either. Lin advances several
arguments that the removal order was unfair. Thus, for example, he claims that the
order is “transparently invalid” and that the order is “subject to remand” because it
is “premised on a patently false factual determination.” But in Gaksakuman v.
United States Attorney General, 767 F.3d 1164 (11th Cir. 2014), we observed that
we do not have jurisdiction to review earlier trips through immigration
proceedings: “Because we conclude that the earlier order [of removal] entered by
the BIA was final, that [the petitioner] declined to pursue a timely petition for its
review, and that [the petitioner], in his second appeal to the BIA, failed to exhaust
his earlier arguments, we hold that we lack jurisdiction to review the earlier order.”
Id. at 1166; cf. Access Now, Inc. v. Sw. Airlines Co., 385 F.3d 1324, 1332 (11th
Cir. 2004) (describing that we will not consider issues raised for the first time on
appeal from a district court except in certain special circumstances).
In the same way, we decline to review the substance of the 1997 hearing as
well as Lin’s first and second motions to reopen his removal proceedings. Lin
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offers no explanation why we should excuse his failure to timely appeal the
removal order or the denials of his first two motions to reopen and examine
challenges to those decisions for the first time at this late hour. Thus, we do not
reach the merits of claims challenging the 1997 order or the findings by the
Immigration Judge on the first and second motions to reopen.
But even if we could evaluate the removal order or the previous motions to
reopen, we can discern no reason why the removal order must be subject to
reopening. Even if the order is “premised on a patently false factual
determination” (that Lin entered the country without inspection), that
determination was reached because of Lin’s own asylum application. In that
application, Lin did not provide the name of any preparer, did not provide the A-
number he had been issued in Honolulu, and did not provide any alternative name.
Lin also declared under penalty of perjury that the contents of the application were
“true and correct to the best of [his] knowledge and belief.” He then failed to
appear at his scheduled hearing and did not appeal the denial of his first motion to
reopen. The BIA has wide discretion to deny reopening even where otherwise
permissible, and there is no clear indication that the removal order would have
been subject to reconsideration.
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D.
We do, however, have jurisdiction to review the claims challenging the
adequacy and substance of the IJ’s and the BIA’s holdings that Lin’s third motion
to reopen was time-barred, number-barred, and lacked any new and previously
unavailable evidence. Generally we have jurisdiction to consider appeals of the
grounds upon which the BIA based its decision. However, when the BIA has been
afforded the ability to rest its decision on discretionary grounds and it does so, we
cannot review the discretionary grounds upon which the BIA renders a decision.
To the extent Lin asks us to overturn the BIA’s decision declining to reopen Lin’s
removal order sua sponte, we cannot engage in that inquiry, although we can
consider the other stated reasons for the BIA’s decision denying the motion to
reopen.
Generally we cannot review decisions of the BIA that are committed to its
discretion. Thus, we have held on several occasions that we lack jurisdiction to
review a decision of the BIA not to exercise its power to reopen a case 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 (11th Cir. 2008) (“Neither the statute nor the
regulation [giving the BIA power to reopen a case sua sponte] provides any
‘meaningful standard against which to judge the agency’s exercise of
discretion.’”). Constitutional claims related to the BIA’s discretionary decisions
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are different. We have observed that we may retain jurisdiction where
constitutional claims are raised relating to the BIA’s refusal to reopen sua sponte.
Id. 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.”); see also Butka, 827 F.3d at 1286 n.7 (noting that statutory
limitations on judicial review of immigration decisions are expressly stated not to
“preclud[e] review of constitutional claims or questions of law raised upon a
petition for review” (quoting 8 U.S.C. § 1252(a)(2)(D))).
In Mata v. Lynch, 135 S. Ct. 2150 (2015), the Supreme Court held recently
that the courts of appeals have jurisdiction to examine immigration claims that
have been rejected pursuant to the statutory requirements for motions to reopen.
Id. at 2154–55 (“[T]he reason for the BIA’s denial makes no difference to the
jurisdictional issue. Whether 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 Board, 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.”). In so
holding, the Supreme Court assumed without deciding that the courts of appeals
lack jurisdiction to review a BIA decision not to use its sua sponte authority. Id. at
2155.
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The BIA decision in this case parallels that in Mata. There, the BIA order
on appeal had, first, denied a motion to reopen as being untimely and not entitled
to equitable tolling and, second, declined to use the BIA’s power to reopen the
removal order sua sponte. Id. at 2153. The Supreme Court held that the courts of
appeals could exercise jurisdiction over the rejection of the motion as untimely,
even while assuming that there was no appellate jurisdiction over the BIA’s denial
of sua sponte reopening. Id. at 2153, 2155.
Here, the BIA’s decision offers three nondiscretionary grounds that are
reviewable under Mata -- that the motion was untimely, numerically barred, and
lacking new and previously unavailable evidence. Our jurisdiction also extends to
challenges to the legal reasoning offered by the BIA.
III.
To reiterate, the claims properly before this Court are Lin’s challenges to the
nondiscretionary grounds of decision and the sufficiency of the decision offered by
the BIA in denying Lin’s third motion to reopen. However, even those claims
falling within our power to review must meet a high standard. Under controlling
precedent, we are tasked with affirming the BIA’s decision if it is based on
“reasoned consideration” and shows that the BIA has “made adequate findings” to
support its outcome. Gaksakuman, 767 F.3d at 1168.
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Where, as here, an order of the BIA adopts certain findings of the
Immigration Judge, we review both the determination of the BIA and the
determination of the IJ. See Gaksakuman, 767 F.3d at 1170; Jeune, 810 F.3d at
799 (“When the BIA issues a decision, we review only that decision, except to the
extent that the BIA expressly adopts the immigration judge’s decision. When the
BIA explicitly agrees with the findings of the immigration judge, we review the
decision of both the BIA and immigration judge as to those issues.” (citation
omitted)). Moreover, we review the BIA’s decision, and the Immigration Judge’s
decision to the extent adopted by the BIA, for abuse of discretion. See, e.g., Zhang
v. U.S. Att’y Gen., 572 F.3d 1316, 1319 (11th Cir. 2009) (“‘We review the [BIA’s]
denial of a motion to reopen removal proceedings for abuse of discretion.’ This
review is limited to determining whether the BIA exercised its discretion in an
arbitrary or capricious manner. The moving party bears a heavy burden, as
motions to reopen are disfavored, especially in removal proceedings.” (first
quoting Li v. U.S. Att’y Gen., 488 F.3d 1371, 1374 (11th Cir. 2007); then citing
Abdi v. U.S. Att’y Gen., 430 F.3d 1148, 1148 (11th Cir. 2005); Ali v. U.S. Att’y
Gen., 443 F.3d 804, 813 (11th Cir. 2006); and INS v. Doherty, 502 U.S. 314, 323
(1992))).
We review claims of legal error, however, including claims that the BIA did
not provide reasoned consideration of its decision, de novo. See, e.g., Jeune, 810
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F.3d at 799 (“[A]n assertion that the agency failed to give reasoned consideration
to an issue is a question of law that we review de novo.”).
A.
A petitioner may file one, and only one motion for reopening of an order of
removal. 8 U.S.C. § 1229a(c)(7)(A). This motion must be made within 90 days of
the removal order’s entry, or 180 days after entry of an order of removal entered in
absentia where failure to appear was “because of exceptional circumstances.” 8
U.S.C. § 1229a(b)(5)(C), (c)(7)(C)(i); 8 C.F.R. § 1003.23(b)(1), (b)(4)(ii). We
have held that the 90-day deadline for a motion to reopen is a non-jurisdictional
claim-processing rule and is, therefore, subject to equitable tolling. Avila-Santoyo
v. U.S. Att’y Gen., 713 F.3d 1357, 1359 (11th Cir. 2013). Typically, equitable
tolling of a time deadline requires a showing that the litigant “(1) . . . has been
pursuing his rights diligently, and (2) that some extraordinary circumstance stood
in his way.” Pace v. DiGuglielmo, 544 U.S. 408, 418 (2005) (citing Irwin v. Dep’t
of Veterans Affairs, 498 U.S. 89, 96 (1990)). In addition, an Immigration Judge or
the BIA may reopen a removal decision sua sponte at any time. 8 C.F.R.
§§ 1003.2(a), 1003.23(b)(1).
The standard for granting a motion to reopen immigration proceedings is
high, and an Immigration Judge is afforded significant discretion in deciding
whether to do so. Reopening may be warranted only where the movant presents
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evidence that is new, material, and unavailable when the removal order was
entered. 8 C.F.R. §1003.23(b)(3) (“A motion to reopen will not be granted unless
the Immigration Judge is satisfied that evidence sought to be offered is material
and was not available and could not have been discovered or presented at the
former hearing.”). The reviewing IJ and the BIA have discretion to deny
reopening even where the movant has made a prima facie case that reopening
would otherwise be appropriate. 8 C.F.R. § 1003.23(b)(3); 8 C.F.R. § 1003.2(a).
Thus, going beyond the numerical and time bars, the BIA may deny a motion for at
least three separate reasons: “1) failure to establish a prima facie case; 2) failure to
introduce evidence that was material and previously unavailable; and 3) a
determination that despite the alien’s statutory eligibility for relief, he or she is not
entitled to a favorable exercise of discretion.” Najjar v. Ashcroft, 257 F.3d 1262,
1302 (11th Cir. 2001) (citing Doherty, 502 U.S. at 323 ).
Here, the BIA unequivocally upheld the reasoning of the IJ: “The
Immigration Judge correctly determined that [Lin’s] motion to reopen was
untimely and numerically barred . . . .” The BIA also agreed with the Immigration
Judge that Lin’s “additional arguments in his third motion to reopen were not new
or previously unavailable.” The notations of the Immigration Judge observed that
Lin had made “no showing [his] evidence [and] argument” were “not previously
available.”
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That decision did not amount to an abuse of discretion. Again, the time limit
on motions to reopen is subject to equitable tolling. See Avila-Santoyo, 713 F.3d at
1365. But even assuming, arguendo, that some ground for equitable tolling was
present, the BIA still had reason to reject Lin’s third motion to reopen. The BIA
found that Lin’s motion to reopen could not be granted because the arguments
offered were “not new or previously unavailable.”
Lin argues, nevertheless, that the Immigration Judge erred in finding, and
the BIA erred in adopting the finding, that the fingerprint report Lin offered was
not new and previously unavailable evidence. Lin says that the Immigration Judge
must have believed that the fingerprint report “was in fact available in September
2014,” when Lin’s second motion to reopen was filed. This is a challenge to the
statutory and regulatory grounds for the BIA’s denial and hence one of the claims
over which this Court has jurisdiction.
This Court has previously determined that the BIA abused its discretion
when it denied, for failure to present previously unavailable evidence, motions to
reopen presenting chronologically new evidence. In Li v. United States Attorney
General, 488 F.3d 1371 (11th Cir. 2007), a Chinese national submitted evidence of
intensified enforcement of China’s one-child policy, including affidavits and State
Department reports from years post-dating her removal order. Id. at 1375. We
found that the petitioner had “evidence of changed circumstances that was not
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available at her original removal proceedings” and the BIA’s refusal to reopen was
an abuse of discretion. Id. We found the same thing in Jiang v. United States
Attorney General, 568 F.3d 1252 (11th Cir. 2009), which was “startlingly” like Li.
Id. at 1257.
However, we have refused to recognize an abuse of discretion in the BIA’s
strict application of evidentiary hurdles. Thus, in Ali v. United States Attorney
General, 443 F.3d 804 (11th Cir. 2006), a panel of this Court found no abuse of
discretion where the BIA refused to consider an unattested photocopy -- which
included a copy of a signature and seal -- of a pardon from criminal charges that
had made the petitioner removable. Id. at 812. There, we ruled that the petitioner
“offer[ed] no compelling reason why he could not have obtained and submitted a
properly certified copy of his pardon.” Id.This case is comparable to Ali, where we could not discern an abuse of
discretion. Like the petitioner there, Lin has not offered any reason, let alone a
compelling one, why he could not have obtained a fingerprint analysis before his
removal order, or in either of his first two motions to reopen. It is not like the
chronologically new and previously unavailable evidence in Li and Jiang, where
State Department reports on which the motions relied were not in existence and
could not have been when the underlying orders were entered. Here, the
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fingerprint analysis was newly obtained but could have been sought and presented
years earlier. Accordingly, we discern no abuse of discretion in the BIA’s finding.
B.
Lin also says that the BIA’s decision did not offer “reasoned consideration”
of his claims. This is an allegation of legal error and, accordingly, we review it de
novo. See, e.g., Jeune, 810 F.3d at 799 (“[A]n assertion that the agency failed to
give reasoned consideration to an issue is a question of law that we review de
novo.”). Where the BIA has not given “reasoned consideration” of a question or
made “adequate findings,” we remand for further proceedings. See, e.g.,
Gaksakuman, 767 F.3d at 1168.
We have previously described the standard for “reasoned consideration” in
clear terms:
A reasoned-consideration examination does not look to whether the
agency’s decision is supported by substantial evidence. Rather, it
looks to see whether the agency has considered the issues raised and
announced its decision in terms sufficient to enable a reviewing court
to perceive that it has heard and thought and not merely reacted. Yet,
while the agency is required to consider all evidence that a petitioner
has submitted, it need not address specifically each claim the
petitioner made or each piece of evidence the petitioner
presented. Ultimately, the agency does not give reasoned
consideration to a claim when it misstates the contents of the record,
fails to adequately explain its rejection of logical conclusions, or
provides justifications for its decision which are unreasonable and
which do not respond to any arguments in the record.
Jeune, 810 F.3d at 803 (quotations and citations omitted).
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Lin’s arguments can be broken down into two essential claims: (1) that the
handwritten, brief reasoning of the Immigration Judge was inadequate and did not
provide enough explanation for the BIA reasonably to review; and (2) that the BIA
failed to address the central problem raised by Lin -- that he was improperly given
a second A-number under which removal was improperly ordered. But, the BIA
did give “reasoned consideration” to Lin’s claims.
i.
Lin argues, in various ways, that the BIA improperly based its decision on
the brief and handwritten notes of the Immigration Judge. None of these
arguments suggest the absence of reasoned consideration as defined by our
precedent. What is central to a showing of reasoned consideration is that the
reasoning of the Immigration Judge and the BIA is logical and can be reviewed for
error. Lin cites Jeune and other precedent for the mandate that a decision showing
“reasoned consideration” must be capable of assessment by a reviewing court. We
agree. But here, the BIA’s order is capable of review. It lists the basic facts of the
case, references the relevant regulatory and statutory provisions on which the order
is based, and accepts several grounds on which the Immigration Judge properly
denied the motion. Likewise, the Immigration Judge’s notes are brief but capable
of review, including much of the crucial information (the facts surrounding the
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procedural history, regulatory provisions, and grounds of decision) with which the
BIA agreed.
Lin also seems to say that meaningful review is not possible because the
Immigration Judge used a form that references an “attached decision,” but
provided handwritten notes instead of anything “attached.” Even assuming there
must be something “attached” because of the wording of the form, this argument
could have been, but was not, raised before the BIA and has not been
administratively exhausted. See supra Part II.
ii.
Finally, Lin argues that the BIA opinion failed to show reasoned
consideration of his appeal because it did not address the central issue he raised:
[T]he crux of Mr. Lin’s claim is that, in denying his Motion to Reopen
to Terminate Proceedings Improvidently Commenced, the
[Immigration Judge] ignored Mr. Lin’s argument that the proceedings
he seeks to close were commenced under an A-number which never
should have been issued, and were based on an allegation (that Mr.
Lin had entered the U.S. in 1991 without inspection) which the
[Immigration Judge] should have found to be false . . . .
As support, Lin cites to Seck v. United States Attorney General, 663 F.3d 1356(11th Cir. 2011), where we rejected one challenge to the sufficiency of a BIA
decision, holding that “the BIA’s order of removal did in fact acknowledge and
address the crux of [the] claim.” Id. at 1366 (reversing the BIA order on other
grounds).
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The legal standard articulated by Lin is inapplicable and ineffective. First,
Seck did not announce a rule that the BIA must address the “crux” of every claim
in order to demonstrate that it gave reasoned consideration. Instead, it announced
grounds on which we upheld the portion of the BIA order in question. Second,
Seck was a direct appeal from an order of removal where the arguments against
removal had to be addressed; it was not, as here, an appeal from a motion to reopen
subject to the discretion of the BIA. The BIA must “consider[] the issues raised”
and cannot “provide[] justifications for its decision which are unreasonable and
which do not respond to any arguments in the record.” Jeune, 810 F.3d at 803.
We cannot say that the BIA’s decision was unreasonable or unresponsive. The
BIA did acknowledge the facts of Lin’s case and offered multiple grounds for its
rejection, which was sufficient to address Lin’s central claim. Quite simply, the
BIA adequately addressed the crux of Lin’s motion. The BIA “heard and thought,”
id., and had reasonable grounds -- indeed, multiple reasonable grounds -- upon
which to reject Lin’s claims.
In short, as for those claims properly before this Court, we find nothing to
indicate that the BIA abused its discretion or demonstrated a lack of reasoned
consideration. Therefore, we must uphold its order.
PETITION DISMISSED in part and DENIED in part.
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