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[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
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No. 19-12178
Non-Argument Calendar
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Agency No. A089-828-905
JEAN CARLO ESPEJO-DAVILA,
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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(January 28, 2020)
Before GRANT, LUCK, and ANDERSON, Circuit Judges.
PER CURIAM:
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Jean Espejo-Davila, a native and citizen of Peru, petitions us to review the
Board of Immigration’s (“BIA”) order denying his untimely and number-barred
motion to reopen his removal proceedings. Espejo-Davila timely filed his first
motion to reopen in April 2015, which the BIA denied. In the instant motion to
reopen, Espejo-Davila argued that Pereira v. Sessions, 138 S. Ct. 2105 (2018), was
a fundamental change in law that warranted a sua sponte reopening of his removal
proceedings. The BIA denied Espejo-Davila’s instant motion to reopen, finding
that Pereira did not provide a basis for sua sponte reopening his case.
We review the BIA’s denial of a motion to reopen for an abuse of discretion.
Al Najjar v. Ashcroft, 257 F.3d 1262, 1302 (11th Cir. 2001). Under this deferential
standard of review, we examine whether the discretion exercised was arbitrary or
capricious. Zhang v. U.S. Att’y Gen., 572 F.3d 1316, 1319 (11th Cir. 2009).
However, we are obligated to review the existence of subject matter jurisdiction
sua sponte where it may be lacking. Cadet v. Bulger, 377 F.3d 1173, 1179 (11th
Cir. 2004). Such review is conducted de novo. Gonzalez-Oropeza v. U.S. Att’y
Gen., 321 F.3d 1331, 1332 (11th Cir. 2003).
Although the BIA may sua sponte reopen removal proceedings at any time,
we do not have jurisdiction to review the BIA’s decision not to reopen an alien’s
case sua sponte. Lenis v. U.S. Att’y Gen., 525 F.3d 1291, 1294 (11th Cir. 2008);
8 C.F.R. § 1003.2(a). However, if a petitioner alleges “constitutional claims
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related to the BIA’s decision not to exercise its sua sponte power to reopen,” then
we “may have jurisdiction” over those claims. Lenis, 525 F.3d at 1294 n.7. A
petitioner must allege at least a colorable constitutional violation for us to retain
jurisdiction pursuant to 8 U.S.C. § 1252(a)(2)(D). Arias v. U.S. Att’y Gen., 482
F.3d 1281, 1284 (11th Cir. 2007).
A party may file only one motion to reopen his removal proceedings, and
that motion “shall state the new facts that will be proven at a hearing to be held if
the motion is granted, and shall be supported by affidavits or other evidentiary
material.” INA § 240(c)(7)(A), (B), 8 U.S.C. § 1229a(c)(7)(A), (B). Generally, a
“motion to reopen shall be filed within 90 days of the date of entry of a final
administrative order of removal,” or before September 30, 1996, whichever is later,
subject to certain exceptions. INA § 240(c)(7)(C)(i), 8 U.S.C. § 1229a(c)(7)(C)(i).
The time and numerical limitations do not apply where: (1) the alien seeks asylum
or withholding of removal based on changed country conditions; (2) the rule for
battered spouses, children, or parents applies; (3) the motion was jointly filed by
the alien and the government; or (4) the government seeks termination of asylum.
INA § 240(c)(7)(C), 8 U.S.C. § 1229a(c)(7)(C); see also 8 C.F.R. § 1003.2(3).
In this case, we do not have jurisdiction to review the BIA’s decision not to
reopen Espejo-Davila’s removal proceedings sua sponte. This reflects the general
rule that we cannot exercise jurisdiction over a decision to not reopen removal
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proceedings sua sponte unless there are constitutional claims concerning the BIA’s
decision. See Lenis, 525 F.3d at 1294 n.7. Though Espejo-Davila argues that
Pereira was a fundamental change in the law that warranted sua sponte reopening,
the BIA concluded that there was no change in law that would support sua sponte
reopening. Espejo-Davila points to no colorable constitutional infirmities with the
BIA’s decision not to reopen his proceedings sua sponte and therefore, we cannot
exercise jurisdiction over it. 1
PETITION DISMISSED.
1
Indeed, the only issue raised by Espejo-Davila on appeal is an issue of statutory interpretation
relating to when the stop-time rule is triggered. In the absence of a colorable constitutional claim,
we have no jurisdiction.
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