Beatriz Elena Anchico Obando v. U.S. Attorney General

Case: 11-15221 Date Filed: 08/15/2012 Page: 1 of 7

[DO NOT PUBLISH]

IN THE UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT
________________________

No. 11-15221
Non-Argument Calendar
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Agency No. A088-800-608

BEATRIZ ELENA ANCHICO OBANDO,

lllllllllllllllllllllllllllllllllllllll lPetitioner,

versus

U.S. ATTORNEY GENERAL,

llllllllllllllllllllllllllllllllllllllll Respondent.

________________________

Petition for Review of a Decision of the
Board of Immigration Appeals
________________________

(August 15, 2012)

Before DUBINA, Chief Judge, MARCUS and JORDAN, Circuit Judges.
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PER CURIAM:

Petitioner Beatriz Elena Anchico Obando, a native and citizen of Colombia,

seeks review of the order of the Board of Immigration Appeals (“BIA”) denying

her motion to reopen her removal proceedings. The BIA declined to reopen her

proceedings sua sponte and determined that her motion was untimely because she

failed to show changed country conditions sufficient to excuse her late motion. In

her petition for review, she presents two issues that we address in turn.

First, Anchico Obando argues that we should reconsider our decision in

Lenis v. U.S. Att’y Gen., 525 F.3d 1291, 1293 (11th Cir. 2008)—which held that

we lack jurisdiction to review the BIA’s denial of a motion to reopen based on its

sua sponte authority—in light of the Supreme Court’s decision in Kucana v.

Holder, 558 U.S. ___, 130 S. Ct. 827, 175 L. Ed. 2d 694 (2010). Anchico Obando

argues that, under Kucana, because no statute expressly states whether the BIA’s

decision to exercise its sua sponte authority is discretionary, the Immigration and

Nationality Act (“INA”) § 242(a)(2)(B)(ii), 8 U.S.C. § 1252(a)(2)(B)(ii) does not

bar judicial review of such decisions.1

1
Although Anchico Obando indicates that she previously raised a due process claim
before the BIA, she does not raise any due process argument in her brief before us. Thus, it is
abandoned. See Sepulveda v. U.S. Att’y Gen., 401 F.3d 1226, 1228, n.2 (11th Cir. 2005)

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We must first address whether we have subject-matter jurisdiction. See

Lenis, 525 F.3d at 1292. Under 8 C.F.R. § 1003.2(a), the BIA may sua sponte

reopen or reconsider any case in which it has rendered a decision at any time,

including upon a party’s written request. Lenis, 525 F.3d at 1293 n.6; see also 8

C.F.R. § 1003.2(a). We lack jurisdiction to review the BIA’s decision concerning

whether to grant a motion to reopen based on its sua sponte authority because 8

C.F.R. § 1003.2(a) provides no meaningful standards against which to judge the

BIA’s exercise of discretion. See Lenis, 525 F.3d at 1292-94. Under the prior

panel precedent rule, “we are bound to follow a prior binding precedent unless and

until it is overruled by this court en banc or by the Supreme Court.” United States

v. Vega-Castillo, 540 F.3d 1235, 1236 (11th Cir. 2008) (internal quotation marks

omitted).

In Kucana, the Supreme Court examined 8 U.S.C. § 1252(a)(2)(B)(ii),

which provides that no court shall have jurisdiction to review any decision or

action by the Attorney General where the authority for the decision or action is

specified “under this subchapter” to be in the discretion of the Attorney General.

558 U.S. at ___, 130 S. Ct. at 831; INA § 242(a)(2)(B)(ii), 8 U.S.C.

(providing that, where an appellant fails to offer argument on an issue, the court considers the
issue abandoned).

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§ 1252(a)(2)(B)(ii). The Court held that § 1252(a)(2)(B)(ii) bars only judicial

review of discretionary decisions where Congress itself sets out the Attorney

General’s discretionary authority in the INA. See Kucana, 558 U.S. at ___, 130 S.

Ct. at 836-37, 839. The Supreme Court, however, “express[ed] no opinion on

whether federal courts may review the [BIA’s] decision not to reopen removal

proceedings sua sponte,” noting that “Courts of Appeals have held that such

decisions are unreviewable because sua sponte reopening is committed to agency

discretion by law.” Id. at ___, 130 S. Ct. at 839 n.18.

Because neither this Court sitting en banc, nor the Supreme Court’s

decision in Kucana, has overruled Lenis, we are bound to follow our prior

precedent. Therefore, we conclude that we lack jurisdiction to review the BIA’s

refusal to sua sponte reopen Anchico Obando’s removal proceedings, and we

dismiss her petition for review to the extent that it raises such a challenge.

II.

Second, Anchico Obando asserts that she showed “extraordinary

circumstances” and changed country conditions sufficient to excuse the untimely

filing of her motion to reopen. She contends that, since she left Colombia, the

government has continued to fight with the Revolutionary Armed Forces of

Colombia (“FARC”) and that the FARC has become stronger than before.

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Anchico Obando further asserts that, because she showed changed country

conditions, the BIA abused its discretion by failing to evaluate her motion to

reopen as a new application for asylum. She also contends that the BIA failed to

properly consider the evidence she presented and denied her motion without

rational explanation.

We review the denial of a motion to reopen a petitioner’s removal

proceedings for an abuse of discretion. Jiang v. U.S. Att’y Gen., 568 F.3d 1252,

1256 (11th Cir. 2009). “Our review is limited to determining whether the BIA

exercised its discretion in an arbitrary or capricious manner.” Id. Generally,

motions to reopen are disfavored. Id.

An alien may file one motion to reopen no later than 90 days after the “final

administrative order of removal.” INA § 240(c)(7)(C)(I), 8 U.S.C.

§ 1229a(c)(7)(C)(I). However, the time and number limitations for filing motions

to reopen do not apply where: (1) the motion seeks asylum, withholding of

removal, or CAT relief; (2) the motion is predicated on changed country

conditions; and (3) the changed conditions are material and could not have been

discovered at the time of the removal proceedings. Jiang, 568 F.3d at 1256; see

also INA § 240(c)(7)(C)(ii), 8 U.S.C. § 1229a(c)(7)(C)(ii). “An alien who

attempts to show that the evidence is material bears a heavy burden and must

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present evidence that demonstrates that, if the proceedings were opened, the new

evidence would likely change the result in the case.” Jiang, 568 F.3d at 1256-57.

A change in personal circumstances does not authorize the untimely filing of a

motion to reopen. See id. at 1258. Although the BIA is not required to discuss

every piece of evidence presented, it is required to give reasoned consideration to

all the evidence submitted by the petitioner. Tan v. U.S. Att’y Gen., 446 F.3d

1369, 1376 (11th Cir. 2006) (reviewing the denial of an application for

withholding of removal); see also Jiang, 568 F.3d at 1258 (noting that the BIA

overlooked or inexplicably discounted evidence in adjudicating a petitioner’s

motion to reopen).

Contrary to Anchico Obando’s assertions, a showing of “extraordinary

circumstances” does not apply in our analysis of whether a late motion to reopen is

excused because of changed country conditions. Further, we conclude from the

record that the BIA did not abuse its discretion in denying Anchico Obando’s

motion to reopen because she failed to show that Colombia’s conditions have

changed, much less that they have materially worsened, since her 2008 removal

proceedings. Finally, the BIA did not arbitrarily or capriciously overlook or

discount any of Anchico Obando’s evidence in denying her motion to reopen.

For the above-stated reasons, we dismiss the petition in part and deny the

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petition in part.

PETITION DISMISSED IN PART, DENIED IN PART.