Antonio Novoa-Carballo v. U.S. Attorney General

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[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
________________________
No. 17-14057
Non-Argument Calendar
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Agency No. A024-677-430
ANTONIO NOVOA-CARBALLO,
Petitioner,
versus
U.S. ATTORNEY GENERAL,
Respondent.
________________________
Petition for Review of a Decision of the
Board of Immigration Appeals
________________________
(August 9, 2018)
Before MARTIN, HULL, and JULIE CARNES, Circuit Judges.
PER CURIAM:
Antonio Novoa-Carballo asks this Court to review the denial of his motion
to sua sponte reopen his removal proceedings by the Board of Immigration
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Appeals. After careful consideration, we dismiss Novoa-Carballo’s petition for
lack of jurisdiction.
I.
Novoa-Carballo is a Cuban citizen. He entered the United States in 1980
and became a lawful permanent resident in 1983. In 1998 he was convicted of
attempted trafficking in cocaine under Florida Statute § 893.135(1)(b). 1 The
following year the Department of Homeland Security began removal proceedings
against him. The Notice to Appear listed Novoa-Carballo’s Florida conviction and
charged him as removable based on his conviction of an aggravated felony under 8
U.S.C. § 1227(a)(2)(A)(iii) or his conviction of an offense relating to a controlled
substance under 8 U.S.C. § 1227(a)(2)(B)(i). Novoa-Carballo admitted his Florida
conviction and an immigration judge (“IJ”) sustained both charges of removability.
The IJ ordered his removal to Cuba on April 4, 2002. He did not appeal.
Nearly fifteen years later, on January 17, 2017, Novoa-Carballo filed a
motion to reopen the removal proceedings. He claimed that since his removal
order was entered, intervening Supreme Court decisions showed that his offense no
longer qualified as a basis for his removal. These decisions were Moncrieffe v.
Holder, 569 U.S. 184, 133 S. Ct. 1678 (2013); Descamps v. United States, 570
1
The statute states: “Any person who knowingly sells, purchases, manufactures,
delivers, or brings into this state, or who is knowingly in actual or constructive possession of, 28
grams or more of cocaine . . . commits a felony of the first degree, which felony shall be known
as ‘trafficking in cocaine.’” Fla. Stat. § 893.135(1)(b).
2
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U.S. 254, 133 S. Ct. 2276 (2013); and Mathis v. United States, 579 U.S. ___, 136
S. Ct. 2243 (2016).
The IJ denied the motion to reopen. He determined that Novoa-Carballo’s
motion was untimely because it was filed outside the 90-day statutory period for
filing motions to reopen. The IJ decided equitable tolling of the 90-day deadline
was not warranted because Novoa-Carballo had not shown he diligently pursued
his rights for the past fourteen years or that the case involved “extraordinary
circumstances.” The IJ also declined to exercise his authority to sua sponte reopen
the proceedings because there had been a fundamental change in law. Specifically,
the IJ determined that Novoa-Carballo’s Florida conviction still “categorically
constitutes an aggravated felony” and thus he “remains properly removable.”
Novoa-Carballo appealed to the Board of Immigration Appeals (“BIA”). He
argued the IJ “erred as a matter of law” by determining his Florida conviction still
qualified as an aggravated felony. Although he conceded that his motion was
untimely, he argued the IJ should have exercised sua sponte authority to reopen the
case because he had shown the result in his case would be different under the new
legal framework. The BIA dismissed the appeal, agreeing with the IJ that Novoa-
Carballo’s Florida conviction was an aggravated felony even under the new
Supreme Court decisions he cited.
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II.
“We review de novo our subject-matter jurisdiction.” Sanchez Jimenez v.
U.S. Att’y Gen., 492 F.3d 1223, 1231 (11th Cir. 2007).
The Immigration and Nationality Act (“INA”) allows noncitizens to file one
“motion to reopen” removal proceedings. 8 U.S.C. § 1229a(c)(7)(A). Generally,
to be timely, the motion must be filed within 90 days of a final administrative order
of removal. Id. § 1229a(c)(7)(C)(i). The 90-day deadline is subject to equitable
tolling. Avila-Santoyo v. U.S. Att’y Gen., 713 F.3d 1357, 1363–65 (11th Cir.
2013) (en banc). Courts of appeals have jurisdiction to review the BIA’s decision
that a motion to reopen is untimely and its decision that equitable tolling does not
apply. Mata v. Lynch, 576 U.S. ___, 135 S. Ct. 2150, 2154–55 (2015).
The BIA can also reopen the removal proceedings “sua sponte at any time.”
Butka v. U.S. Att’y Gen., 827 F.3d 1278, 1283 (11th Cir. 2016) (citing 8 C.F.R.
§ 1003.2(a)). The BIA has held that it will exercise this authority “only in
exceptional circumstances,” which requires showing that “there is a substantial
likelihood that the result in [the noncitizen’s] case would be changed if reopening
is granted.” Id. (quotation omitted). This Court has held that it “does not have
jurisdiction to review the BIA’s denial of a motion to sua sponte reopen
proceedings, with the possible exception of constitutional issues.” Id. at 1285
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(citing Lenis v. U.S. Att’y Gen., 525 F.3d 1291, 1293–94 & n.7 (11th Cir. 2008)). 2
Thus, although “[a] fundamental change in law may satisfy this [exceptional
circumstances] condition” to merit sua sponte reopening, this Court does not have
jurisdiction to review “whether the BIA correctly assessed the impact of the new
law on [the noncitizen’s] case.” Id. at 1283, 1286.
III.
On petition to this Court, Novoa-Carballo concedes that his motion to
reopen was untimely under the statutory provision. He challenges only the BIA’s
decision not to exercise sua sponte authority to reopen his removal proceedings.
He argues that we have jurisdiction to review this issue because the BIA’s decision
was based on a legal conclusion—that his Florida drug-trafficking offense qualifies
as an aggravated felony. Novoa-Carballo does not argue that his petition raises a
constitutional issue.
This Court’s decisions in Lenis and Butka are controlling. Under this
circuit’s prior-precedent rule, “a prior panel’s holding is binding on all subsequent
panels unless and until it is overruled or undermined to the point of abrogation by
the Supreme Court or by this court sitting en banc.” United States v. Archer, 531
2
In Lenis, this Court determined that the BIA’s decision to exercise sua sponte authority
to reopen removal proceedings “is committed to agency discretion by law” under the
Administrative Procedure Act (“APA”). Lenis, 525 F.3d at 1294. In Butka, this Court
determined that, because Lenis rested on the APA and not the INA’s jurisdiction-stripping
provisions, the INA’s recognition of the “enduring reviewability of questions of law” and
constitutional issues in 8 U.S.C. § 1252(a)(2)(D) does not impact this case. Butka, 827 F.3d at
1286 n.7.
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F.3d 1347, 1352 (11th Cir. 2008). Because Novoa-Carballo does not raise any
constitutional claims, we lack jurisdiction to review the denial of his motion for
sua sponte reopening. See Butka, 827 F.3d at 1285–86; Lenis, 525 F.3d at 1293–
94 & n.7.
DISMISSED.
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