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[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
________________________
No. 17-12970
Non-Argument Calendar
________________________
Agency No. A023-216-576
RAMON JESUS LANTES GONZALEZ,
Petitioner,
versus
U.S. ATTORNEY GENERAL,
Respondent.
________________________
Petition for Review of a Decision of the
Board of Immigration Appeals
________________________
(April 6, 2018)
Before MARCUS, ROSENBAUM and FAY, Circuit Judges.
PER CURIAM:
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Ramon Jesus Lantes Gonzalez petitions for review of the Board of
Immigration Appeals’ (“BIA”) order affirming the denial by the Immigration
Judge (“IJ”) of his motion to reopen his immigration proceedings. We dismiss the
petition for lack of jurisdiction.
I. BACKGROUND
Gonzalez, a native and citizen of Cuba, was paroled in the United States in
1980 and granted lawful permanent resident status in 1986. In 1995, he pled guilty
to, and was convicted of, two counts of delivery and one count of possession of
cocaine, in violation of Florida law. The state court sentenced him to 17 months of
imprisonment. In 1996, authorities served Gonzalez with an Order to Show Cause,
charging him with deportability under Section 241(a)(2)(A)(iii), (B)(i) of the
Immigration and Nationality Act (“INA”), because he had been convicted of both
“aggravated felonies” and violations of “controlled substance” laws after his entry
into the country.
In May 1997, the government moved to pretermit Gonzalez’s anticipated
motion for relief under INA § 212(c). After a hearing, in October 1997, the IJ
issued an order stating that, on “the basis of [Gonzalez’s] admission,” he had
determined that Gonzalez was deportable as charged. After further stating that he
had “made no application for relief from deportation,” the IJ ordered that Gonzalez
be deported from the United States. Gonzalez did not administratively appeal this
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ruling; instead, less than 90 days later, he moved to reopen and reconsider. The IJ
denied his motion to reopen, stating that “[n]o substantial grounds [had] been
advanced to warrant its grant.” Gonzalez did not administratively appeal this
ruling; rather, he filed a motion for clarification, stating that the IJ’s order did “not
appear to rule on or consider” his claim for withholding of deportation. In
February 1998, the IJ denied his motion for clarification, noting that the statute
precluded him “from applying for political asylum as well as for withholding of
deportation.” Gonzalez did not appeal this ruling to the BIA.
In 2009, Gonzalez, proceeding pro se, filed a second motion to reopen his
immigration proceedings. The IJ denied his motion as both untimely, because it
was filed more than 90 days after the final 1997 order, and as number-barred,
because an alien is only permitted to file one motion to reopen. Gonzalez again
did not administratively appeal this decision.
In December 2016, Gonzalez, with the assistance of counsel, filed the
present motion “to sua sponte reopen [his] case” based on “exceptional
circumstances.” He argued that the IJ, in issuing the 1997 deportation order,
erroneously determined that he was ineligible for § 212(c) relief, as his case fit
squarely in the Supreme Court’s exception from INS v. St. Cyr, 533 U.S. 289, 121
S. Ct. 2271 (2001), which held that aliens who were convicted through a guilty
plea prior to the Antiterrorism and Effective Death Penalty Act (“AEDPA”) and
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the Illegal Immigration Reform and Immigrant Responsibility Act (“IIRIRA”)
were entitled to seek discretionary relief under INA § 212(c), provided they were
otherwise entitled to seek such relief.
In January 2017, the IJ denied Gonzalez’s motion to reopen. The IJ declined
to exercise his sua sponte authority to reopen the case, concluding that Gonzalez
would not be able to seek relief under § 212(c) and St. Cyr because his motion was
not filed prior to the April 2005 deadline and he therefore failed to show a
substantial likelihood that the result in his case would be changed. The IJ further
determined that “even assuming arguendo that [the motion] would not be untimely
or number-barred,” he failed to “meet his burden for proving that he merits a
favorable exercise of discretion or the rare case for a sua sponte reopening.”
Gonzalez appealed to the BIA. The BIA agreed with the IJ that although
Gonzalez could have sought § 212(c) relief under St. Cyr, such a request should
have been filed by April 2005. It also agreed that Gonzalez failed to otherwise
show exceptional circumstances warranting a sua sponte reopening. Finally, the
BIA concluded that Gonzalez failed to establish “that he was denied a full and fair
hearing at any stage of these proceedings.” The BIA dismissed the appeal.
II. DISCUSSION
On petition for review, Gonzalez argues that the agency should have
reopened his proceedings because he was denied a “full and fair hearing”
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throughout the process, particularly as to his claims for asylum, withholding of
removal, and relief under the former INA § 212(c).1 The government responds
that we lack jurisdiction to review the BIA’s order denying Gonzalez’s motion to
reopen, because it was requested under the agency’s sua sponte authority.
We review our subject matter jurisdiction de novo. Arias v. U.S. Att’y Gen.,
482 F.3d 1281, 1283 (11th Cir. 2007). 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), 1003.23(b)(1); Avila-Santoyo
v. U.S. Att’y Gen., 713 F.3d 1357, 1363 (11th Cir. 2013). 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). Moreover, under 8 U.S.C.
§ 1252(d)(1), we may only review arguments that have been fully exhausted before
the BIA. Amaya-Artunduaga v. U.S. Att’y Gen., 463 F.3d 1247, 1250 (11th Cir.
2006). This requirement is jurisdictional; that is, we lack jurisdiction to consider
issues that were not raised in the petitioner’s arguments to the BIA. Id.
1
We note that Gonzalez challenges several agency rulings that predate the denial of his current
motion to reopen, including the IJ’s original 1997 order of deportation. However, we conclude
that we lack jurisdiction to review these rulings, and therefore these challenges warrant no
further discussion. See INA § 242, 8 U.S.C. § 1252(b)(1); Dakane v. U.S. Att’y Gen., 399 F.3d
1269, 1272 n.3 (11th Cir. 2005).
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In Lenis, “in passing,” we noted “that an appellate court may have
jurisdiction over constitutional claims related to the BIA’s decision not to exercise
its sua sponte power,” but because the petitioner had not raised a constitutional
claim, we had no occasion to determine whether jurisdiction over such a
constitutional claim existed. Lenis, 525 F.3d at 1294 n.7. We later revisited the
issue and stated that this question remained open, but we confirmed that we
ordinarily lack jurisdiction to review the denial of a motion to reopen under the
agency’s sua sponte power. Butka v. U.S. Att’y Gen., 827 F.3d 1278, 1283-86
(11th Cir. 2016), cert. denied sub nom. Butka v. Sessions, 138 S. Ct. 299 (2017).
Again, because the petitioner in Butka did not raise any constitutional claims, we
did not engage in a detailed discussion of our jurisdiction over the denial of a sua
sponte motion to reopen that implicates constitutional issues. Id. at 1286; see also
Lin v. U.S. Att’y Gen., 881 F.3d 860, 871 (11th Cir. 2018) (“Constitutional claims
related to the BIA’s discretionary decisions 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.”).
We have not addressed, in a published opinion, the circumstances in which
we retain jurisdiction to review constitutional claims related to the agency’s sua
sponte authority to reopen. In other contexts, we have indicated that in certain
circumstances, we may retain jurisdiction, despite limitations on judicial review,
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over constitutional claims raised in a petition for review. Arias, 482 F.3d at 1283-
84. Such claims must be “colorable,” however, and must not simply be abuse of
discretion arguments “cloak[ed] . . . in constitutional garb.” Id. at 1284 (quotation
omitted). In the exhaustion context, we have indicated that an allegation of a due
process violation that the petitioner was denied a “full and fair hearing” was
precisely the type of procedural error that required exhaustion, and over which we
lacked jurisdiction in the absence of such exhaustion. Amaya-Artunduaga, 463
F.3d at 1251. We also have held that due process arguments made in the context
of a denial of a motion to reopen were subject to the exhaustion requirement
because they did not raise “a larger challenge to the immigration process beyond
the power of the BIA to address.” Lin, 881 F.3d at 868. In other words, whether
we retained jurisdiction depended there on whether the claim was “within the
purview of the BIA,” which could provide a remedy. Amaya-Artunduaga, 463
F.3d at 1251 (quotation omitted).
Finally, in St. Cyr, the Supreme Court discussed the impact of the AEDPA’s
and the IIRIRA’s elimination of § 212(c) relief for aliens who were convicted of a
crime pursuant to a guilty plea while that relief was still a viable option. St. Cyr,
533 U.S. at 314-15, 121 S. Ct. at 2287. Prior to their enactment and at the time of
Gonzalez’s guilty plea in March 1996, § 212(c) provided an alien with the ability
to seek discretionary relief from exclusion if, inter alia, he did not receive more
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than a five-year sentence on the conviction that subjected him to deportation. Id. at
297, 121 S. Ct. at 2277. The Court ultimately held that because the possibility of
receiving § 212(c) relief undoubtedly played into these aliens’ decisions to plead
guilty, Ҥ 212(c) relief remain[ed] available for aliens . . . whose convictions were
obtained through plea agreements and who, notwithstanding those convictions,
would have been eligible for § 212(c) relief at the time of their plea under the law
then in effect.” Id. at 325-26, 121 S. Ct. at 2293. Following St. Cyr, applicable
regulations were promulgated allowing aliens to seek relief under its decision, but
the regulations provide that such “special motions” to reopen were required to be
filed prior to April 26, 2005. 8 C.F.R. § 1003.44(h); see also Executive Office for
Immigration Review, Section 212(c) Relief for Aliens With Certain Criminal
Convictions Before April 1, 1997, 69 Fed. Reg. 57826-01 (Sept. 28, 2004). See
generally 8 C.F.R. § 1003.44.
Here, assuming arguendo that Gonzalez has fully presented his argument
that the BIA erred in denying his motion to reopen under its sua sponte authority,
we conclude that we lack jurisdiction to review that denial. We have expressly
held that we lack jurisdiction to review such decisions. Lenis, 525 F.3d at 1292-
93. Although we potentially reserved jurisdiction to review them where
constitutional issues are implicated, no such claims are present in this case.
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First, Gonzalez’s claim that his due process rights were violated because he
never received a full hearing is precisely the type of claim the BIA can review, as it
is not a challenge to the larger immigration process itself. Lin, 881 F.3d at 868.
Second, Gonzalez’s claim is not “colorable” and is simply an abuse of discretion
argument—although he may be correct in asserting that, based on St. Cyr, he
should not have been per se barred from seeking § 212(c) relief at the time of his
original October 1997 deportation order, he had several years to seek relief
between the issuance of St. Cyr in 2001 and the April 2005 deadline. He failed to
do so and did not file the present motion until 2016. The fact that he had a nearly
four-year window in which to file a special motion to reopen and have his § 212(c)
claim adjudicated defeats his due process arguments. Accordingly, we lack
jurisdiction to review the agency’s denial of relief under its sua sponte power.
Finally, although Gonzalez asserts that, in an opinion issued after the BIA’s
order on appeal, we have held that his delivery of cocaine conviction no longer
qualifies as a crime that would preclude him from seeking both withholding and
§ 212(c) relief, 2 this argument was not presented to the BIA. Thus, it is
unexhausted and cannot be reviewed in this appeal. Amaya-Artunduaga, 463 F.3d
at 1250.
PETITION DISMISSED.
2
Gordon v. U.S. Att’y Gen. 861 F.3d 1314 (11th Cir. 2017). The BIA issued its order on June 6,
2017; Gordon was published on July 10, 2017.
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