Carlos Cardenas-Guerrero v. U.S. Attorney General

Case: 15-10566 Date Filed: 12/28/2015 Page: 1 of 5
[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
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No. 15-10566
Non-Argument Calendar
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Agency No. A031-427-914
CARLOS CARDENAS-GUERRERO,
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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(December 28, 2015)
Before TJOFLAT, JILL PRYOR and BLACK, Circuit Judges.
PER CURIAM:
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Carlos Cardenas-Guerrero seeks review of the Board of Immigration
Appeals’ (BIA) dismissal of his appeal from the Immigration Judge’s (IJ) denial of
his motion to reopen removal proceedings, pursuant to the Immigration and
Nationality Act (INA), 8 U.S.C. § 1229a(c)(7). Cardenas-Guerrero asserts the BIA
and IJ’s denial of his motion to reopen his removal proceedings violated his due
process rights because the IJ in the underlying deportation proceedings conducted
the merits hearing without his counsel present and failed to advise him of his right
to counsel. Cardenas-Guerrero further contends the BIA abused its discretion by
not exercising its ability to sua sponte reopen the deportation proceedings based on
the deprivation of his due process rights during the deportation hearing. After
review, 1 we dismiss and deny the petition.
I. DISCUSSION
A. Equitable Tolling
A “motion to reopen shall be filed within 90 days of the date of entry of a
final administrative order of removal,” subject to certain exceptions. 8 U.S.C.
§ 1229a(c)(7)(C)(i). The time bar for motions to reopen is not jurisdictional, and
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We review the denial of a motion to reopen removal proceedings for an abuse of
discretion. Zhang v. U.S. Att’y Gen., 572 F.3d 1316, 1319 (11th Cir. 2009). Our 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.” Id. (internal citations omitted). We review de novo whether we have
subject matter jurisdiction to consider a petition for review. Ruiz v. Gonzales, 479 F.3d 762, 765
(11th Cir. 2007).
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thus equitable tolling may be available. See Avila-Santoyo v. U.S. Att’y Gen., 713
F.3d 1357, 1362-65 (11th Cir. 2013) (en banc). Because Cardenas-Guerrero did
not file his motion to reopen for more than 24 years his motion was untimely and
he needed to satisfy the equitable tolling requirements.
The BIA did not abuse its discretion by affirming the IJ’s denial of
Cardenas-Guerrero’s motion to reopen. The BIA did not exercise its discretion in
an arbitrary or capricious manner because it reasonably concluded from the
evidence that Cardenas-Guerrero did not exercise due diligence in pursuing his
rights. See Avila-Santoyo, 713 F.3d at 1363 n.5 (stating to establish eligibility for
equitable tolling, a litigant must show that (1) he has been pursuing his rights
diligently, and (2) some extraordinary circumstance stood in his way). According
to Cardenas-Guerrero’s declaration, he sought documentation from his former
attorney in late 1988 that could confirm his case had been resolved favorably, but
received none. There is no evidence that Cardenas-Guerrero did anything after that
point to follow up or to try to obtain the status of his case from immigration
authorities. Consequently, the BIA was within its discretion to conclude that
Cardenas-Guerrero failed to show the requisite diligence. Because Cardenas-
Guerrero did not make the threshold showing that he was entitled to equitable
tolling, we need not consider the merits of his motion to reopen pursuant to an
ineffective assistance of counsel claim. See Ruiz-Turcios v. U.S. Att’y Gen., 717
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F.3d 847, 851 (11th Cir. 2013) (explaining the eligibility for equitable tolling is a
threshold showing that must be made before the merits of the claim underlying a
motion to reopen can be considered).
B. Sua Sponte Reopening
We lack jurisdiction to review the BIA’s denial of a motion to reopen based
on the BIA’s sua sponte authority because the regulation permitting sua sponte
reopening provides no meaningful standard against which to judge the BIA’s
exercise of its discretion. See Lenis v. U.S. Att’y Gen., 525 F.3d 1291, 1292-94
(11th Cir. 2008). As we explained in Lenis, no statute expressly authorizes sua
sponte reopening, and instead the regulatory authorization to sua sponte reopen
derives from a statute granting general authority over immigration matters to the
Attorney General, a statute that “sets no standard for the Attorney General’s
decision-making in this context.” Id. at 1293; see also 8 U.S.C. § 1103(g)(2).
While we indicated in a footnote we “may have jurisdiction over constitutional
claims related to the BIA’s decision not to exercise its sua sponte power,” we
recognized we had not yet decided the question and had no occasion to do so
because the petitioner in Lenis did not raise any constitutional claims. See Lenis,
525 F.3d at 1294 n.7.
We lack jurisdiction to consider whether the BIA erred in refusing to sua
sponte reopen Cardenas-Guerrero’s proceedings. As in Lenis, Cardenas-
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Guerrero’s claim is not a constitutional claim “related to the BIA’s decision not to
exercise its sua sponte power.” See id. Rather, Cardenas-Guerrero’s ineffective
assistance of counsel claim, although nominally addressed to the BIA’s decision as
well as to the first IJ’s actions in the deportation proceedings, in substance relates
only to whether the circumstances that occurred in the deportation proceedings and
thereafter were sufficiently exceptional to warrant a sua sponte reopening.
II. CONCLUSION
Accordingly, we dismiss Cardenas-Guerrero’s petition in part and deny in
part.
DISMISSED IN PART, DENIED IN PART.
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