Case: 17-15660 Date Filed: 09/26/2018 Page: 1 of 3
[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
________________________
No. 17-15660
Non-Argument Calendar
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Agency No. A095-220-841
MUTIJIMA CHRISTINE BUTERA,
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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(September 26, 2018)
Before WILLIAM PRYOR, NEWSOM, and ANDERSON, Circuit Judges.
PER CURIAM:
Case: 17-15660 Date Filed: 09/26/2018 Page: 2 of 3
Mutijima Christine Butera, a native and citizen of Rwanda, petitions for
review of the Board of Immigration Appeals’s order denying her motion to sua
sponte reopen her removal proceedings. In her petition, Butera asserts (1) that the
BIA addressed only its statutory authority to reopen and did not mention the phrase
“sua sponte” in its decision, thereby applying the wrong law and depriving her of
an opportunity to be heard; (2) that the BIA erred in concluding that she failed to
prove either of her two ineffective-assistance-of-counsel claims; and (3) that she
was eligible for asylum, and thus not subject to the otherwise applicable deadline
within which she would have had to file her motion to reopen. See 8 U.S.C. §
1229a(c)(7)(C)(i)–(ii). After careful review, we dismiss Butera’s petition for lack
of jurisdiction.1
Under the Immigration and Nationality Act, an alien may file one statutory
motion to reopen, which must be filed within 90 days of the final order of removal.
INA § 240(c)(7), 8 U.S.C. § 1229a(c)(7). In addition to the statutory motion to
reopen, the BIA has the authority to reopen removal proceedings sua sponte at any
time. 8 C.F.R. § 1003.2(a).
We lack jurisdiction to review the BIA’s denial of a motion to reopen based
on its sua sponte authority. Lenis v. U.S. Att’y Gen., 525 F.3d 1291, 1292–94 (11th
Cir. 2008); see also Butka v. U.S. Att’y Gen., 827 F.3d 1278, 1285–86 (11th Cir.
1
We review de novo our own subject matter jurisdiction. Gonzalez-Oropeza v. U.S. Att’y Gen.,
321 F.3d 1331, 1332 (11th Cir. 2003).
2
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2016). Although Butera argues that the BIA addressed only its statutory authority
to reopen removal proceedings, and thus applied the incorrect law for sua sponte
motions to reopen under 8 C.F.R. § 1003.2(a), the BIA’s decision shows that it
fully considered Butera’s arguments in favor of sua sponte reopening. 2 Therefore,
we lack jurisdiction to review the BIA’s decision. See Lenis, 525 F.3d at 1292–94.
Additionally, although Butera references “due process” once in making her
arguments―and while it is true that “we may retain jurisdiction where
constitutional claims are raised relating to the BIA’s refusal to reopen sua sponte,”
Bing Quan Lin v. U.S. Att’y Gen., 881 F.3d 860, 871 (11th Cir. 2018)―a petitioner
“may not create the jurisdiction that Congress chose to remove simply by cloaking
an abuse of discretion argument in constitutional garb,” Arias v. U.S. Att’y Gen.,
482 F.3d 1281, 1284 (11th Cir. 2007) (citation omitted). So to the extent that
Butera attempts to make a constitutional claim here, we conclude―as we did in
Arias―that her claim is really an abuse-of-discretion argument “couched in
constitutional language,” and as such, we likewise lack jurisdiction to review it.
Id.
Accordingly, we lack jurisdiction to consider Butera’s petition for review.
PETITION DISMISSED.
2
Butera notes that the BIA never mentioned the phrase “sua sponte” in its order and therefore
must have ignored or misconstrued her arguments. Especially given that Butera requested only
sua sponte reopening, we conclude that the BIA’s decision is most fairly read to have understood
and ruled on that request. See, e.g., In re Mutijima Christine Butera, AXXXXXXXX at 4 (B.I.A.
Nov. 22, 2017).
3