Esperanza Silva-Solis v. U.S. Attorney General

Case: 16-17710 Date Filed: 08/02/2018 Page: 1 of 3
[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
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No. 16-17710
Non-Argument Calendar
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Agency No. A097-828-139
ESPERANZA SILVA-SOLIS,
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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(August 2, 2018)
Before MARCUS, ROSENBAUM and BLACK, Circuit Judges.
PER CURIAM:
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Esperanza Silva-Solis, proceeding pro se, petitions for review of the Board
of Immigration Appeals’ (BIA) order affirming the Immigration Judge’s (IJ) denial
of her motion to reopen her removal proceedings pursuant to its sua sponte
authority. The Government filed a motion to dismiss Silva-Solis’s petition for lack
of jurisdiction, and we previously ordered the Government’s motion be carried
with the case.
Both the BIA and the IJ have the authority to reopen removal proceedings or
reconsider earlier decisions pursuant to their sua sponte authority at any time.
8 C.F.R. § 1003.2(a); Butka v. U.S. Att’y Gen., 827 F.3d 1278, 1283 (11th Cir.
2016), cert. denied sub nom. Butka v. Sessions, 138 S. Ct. 299 (2017). We have
held, however, that we lack jurisdiction to review the BIA’s denial of a motion to
reopen based on its sua sponte authority because 8 C.F.R. § 1003.2(a) provides no
meaningful standard against which to judge the BIA’s exercise of its discretion.
Lenis v. U.S. Att’y Gen., 525 F.3d 1291, 1292-94 (11th Cir. 2008).
We lack jurisdiction to review the denial of Silva-Solis’s motion to reopen
under the BIA’s sua sponte authority. See Lenis, 525 F.3d at 1293. Although we
have potentially reserved jurisdiction to review such decisions where constitutional
issues are implicated, no such claims are present in this case. See id. at 1294 n.7;
Butka, 827 F.3d at 1284. Silva-Solis’s claim, that the BIA “abused its discretion”
by violating her due process rights when it failed to consider her evidence of
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changed law, is an abuse of discretion argument that is not “colorable” as a
constitutional issue. See Arias v. U.S. Att’y Gen., 482 F.3d 1281, 1283-84 (11th
Cir. 2007) (holding, in the context of constitutional challenges to final orders of
removal that would otherwise be unreviewable by us, that such constitutional
claims must be “colorable” and not simply abuse of discretion arguments disguised
in constitutional language). Silva-Solis’s argument regards the BIA’s failure to
consider an alleged change in law, which this Court has held it lacks jurisdiction to
consider. See Butka, 827 F.3d at 1285-86; Lenis, 525 F.3d at 1292, 1294.
Accordingly, we grant the Government’s motion and dismiss Silva-Solis’s petition
for lack of jurisdiction.
PETITION DISMISSED.
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