Jean Martelly Brice v. U.S. Atty. General

[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT FILED
________________________ U.S. COURT OF APPEALS
ELEVENTH CIRCUIT
No. 03-14875 DECEMBER 22, 2005
________________________ THOMAS K. KAHN
CLERK
BIA No. A77-013-328
JEAN MARTELLY BRICE,
Petitioner,
versus
UNITED STATES ATTORNEY GENERAL,
Respondent.
________________________
Petition for Review of an Order of the
Board of Immigration Appeals
_________________________
(December 22, 2005)
Before BIRCH, KRAVITCH and GIBSON *, Circuit Judges.
PER CURIAM:
*
Honorable John R. Gibson, United States Circuit Judge for the Eighth Circuit, sitting by
designation.
Jean Brice requests review of a denial of a motion to reconsider a motion to
reopen his proceedings and a request for sua sponte reopening. Because the Board
of Immigration Appeals (“BIA”) was within its broad discretion, we DENY his
petition.
I. BACKGROUND
Brice is a native and citizen of Haiti. On 29 September 2000, he sought
entry into the United States using a fraudulent passport. The Immigration and
Naturalization Service subsequently charged him with removability as an alien
who sought admission into the United States using fraud and who intended to
immigrate without a valid entry document in violation of 8 U.S.C.
§ 1182(a)(6)(C)(i), (a)(7)(A)(i)(I). An immigration judge denied Brice’s claims for
relief from removal in the form of asylum and withholding and his requested
protection under the Convention Against Torture.
Brice appealed the decision of the immigration judge to the BIA, which
denied his appeal. Brice failed to petition this court to review that decision.
Instead, he asked the BIA to reopen proceedings, which motion the BIA denied
because Brice had not demonstrated that an immigrant visa was immediately
available to him. Brice then made an untimely motion for reconsideration of the
denial of reopening and requested sua sponte reopening. The BIA denied both the
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motion to reconsider and the motion for sua sponte reopening. Brice asks us to
review these last decisions of the BIA.
II. DISCUSSION
We “are obligated to inquire into subject-matter jurisdiction sua sponte
whenever it may be lacking.” Cadet v. Bulger, 377 F.3d 1173, 1179 (11th Cir.
2004) (citation omitted). While we generally have jurisdiction to review final
orders of removal, the petition for review must be filed not later than thirty days
after the date of the final order of removal. See 8 U.S.C. § 1252(a)(1), (b)(1). An
order of removal becomes final when the BIA dismisses a petitioner’s appeal. 8
C.F.R. § 1241.1(a).
We have held that, “[s]ince the statutory limit for filing a petition for review
in an immigration proceeding is ‘mandatory and jurisdictional,’ it is not subject to
equitable tolling. . . . Furthermore, the filing deadline is not suspended or tolled by
the fact that [the petitioner] filed a [timely] motion to reopen the removal
proceedings . . . after issuance of the final order of removal.” Dakane v. U.S. Att’y
Gen., 399 F.3d 1269, 1272 n.3 (11th Cir. 2005) (per curiam) (citing Stone v. INS,
514 U.S. 386, 405, 115 S. Ct. 1537, 1549 (1995)). Thus, we do not have
jurisdiction to entertain Brice’s challenge to proceedings prior to the most recent
denial of his motions for reconsideration and sua sponte reopening, because those
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proceedings were not timely appealed.
We do have jurisdiction to review the BIA denial of Brice’s motion to
reconsider and review such motions for an abuse of discretion. See Assa’ad v.
U.S. Att’y Gen., 332 F.3d 1321, 1341 (11th Cir. 2003). A motion to reconsider
“shall specify the errors of law or fact in the previous order and shall be supported
by pertinent authority.” 8 U.S.C. § 1229a(c)(5)(C).1 “Judicial review of denials of
discretionary relief incident to deportation proceedings . . . is limited to
determining ‘whether there has been an exercise of administrative discretion and
whether the matter of exercise has been arbitrary or capricious.’” Garcia-Mir v.
Smith, 766 F.2d 1478, 1490 (11th Cir. 1985) (per curiam) (citation omitted)
(addressing a motion to reopen). Motions to reconsider are disfavored, especially
in a deportation proceeding, “where, as a general matter, every delay works to the
advantage of the deportable alien who wishes merely to remain in the United
States.” INS v. Doherty, 502 U.S. 314, 323, 112 S. Ct. 719, 724–25 (1992).
In this case, the BIA made three rulings in the order denying Brice’s motion
for reconsideration: (1) it denied the motion to reconsider in July of a January
order as time barred; (2) it denied the motion for reconsideration of the June order
for failure to state a factual or legal defect in the decision to deny Brice a “V” visa;
1
It appears that 8 U.S.C. § 1229a(c)(5)(C) will become 8 U.S.C.
§ 1229a(c)(6)(C) in the next edition of the United States Code as a result of the REAL ID Act.
See REAL ID Act of 2005, Pub. L. 109-13, 119 Stat. 231.
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(3) it declined to exercise sua sponte authority to reopen the proceedings. Brice
cannot challenge the first decision 2 and conceded the second at oral argument,3 so
we need address only the BIA’s decision not to exercise its sua sponte authority to
reopen.
The BIA has “the discretion to reopen immigration proceedings in situations
where federal courts lack the legal authority to mandate reopening.” Anin v. Reno,
188 F.3d 1273, 1279 (11th Cir. 1999). We have observed that 8 C.F.R. § 1003.2(a)
“gives the BIA non-reviewable discretion to dismiss [a petitioner’s] claim.” Id.2
Citing Patel v. Attorney General, 334 F.3d 1259, 1263 (11th Cir. 2004), Brice asserts in
his brief and supplemental filings that we may review “substantial constitutional” challenges.
Brice argues that new factual circumstances warrant our, or at least the BIA’s, review. However,
new facts may not be raised in a motion to reconsider because a motion to reconsider requires a
decisionmaker to consider only the circumstances that existed when the decision was originally
made. Zhao v. U.S. Dep’t of Justice, 265 F.3d 83, 90 (2d Cir. 2001). We may not consider the
new facts submitted by Brice in his appellate brief for the same reason. See Csekinek v. INS,
391 F.3d 819, 823 (6th Cir. 2004).
Citing Bull v. INS, 790 F.2d 869, 871 (11th Cir. 1986), Brice argues that he is entitled to
the relief he sought, because his eligibility date has arrived since his January 2003 motion to
reopen was filed. The inevitability of the subsequent arrival of an eligibility date is an important
reason that motions to reconsider are reviewed on appeal as of the record at the time of the
determination in question. As was observed by the BIA, Brice did not have a visa immediately
available at the time of the initial decision. We therefore do not read Brice’s claim under Bull as
establishing a violation of his due process rights, as such a determination would thwart
Congress’s intent.
Because he does not allege any facts from the administrative record that demonstrate a
deprivation of procedural due process nor cite a single case in support of such a claim, we
construe Brice’s constitutional argument as couched in vague substantive due process language
regarding the inherent unfairness of the application of the immigration laws to his case. Such a
vague allegation is insufficient to state a claim of substantial constitutional violation such that
we would have jurisdiction to examine claims that are otherwise procedurally barred.
3
Brice conceded at oral argument that because of changed circumstances, he is no longer
eligible for a “V” Visa under 8 C.F.R. § 214.15. We accept this waiver of the argument
advanced in his brief and, therefore, do not address it.
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The BIA is not required “to reopen a deportation proceeding under any set of
particular circumstances. Instead, the provision merely provides the BIA the
discretion to reopen immigration proceedings as it sees fit.” Id. Thus, there was
no abuse of discretion when the BIA did not exercise its sua sponte authority to
reopen Brice’s proceedings.
III. CONCLUSION
Brice has failed to show that he is entitled to relief from the BIA’s denial of
his motion to reconsider and his motion for sua sponte review. The BIA was
within its discretion to deny these motions. PETITION DENIED.
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