Indira Nurmatovna Shafikova v. U.S. Attorney General

[DO NOT PUBLISH]
In the
United States Court of Appeals
For the Eleventh Circuit
____________________
No. 22-12929
Non-Argument Calendar
____________________
INDIRA NURMATOVNA SHAFIKOVA,
Petitioner,
versus
U.S. ATTORNEY GENERAL,
Respondent.
____________________
Petition for Review of a Decision of the
Board of Immigration Appeals
Agency No. A205-105-389
____________________
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2 Opinion of the Court 22-12929
Before R OSENBAUM , J ILL PRYOR , and TJOFLAT, Circuit Judges.
PER CURIAM:
Petitioner Indira Nurmatovna Shafikova—a native and citi-
zen of Uzbekistan—appeals the Board of Immigration Appeals’
(BIA) decision not to reopen her removal proceedings sua sponte.
Shafikova argues that the BIA violated her due process rights be-
cause it overlooked supplements she submitted describing the con-
ditions in Uzbekistan. Per Shafikova, those supplements support
her argument that Matter of L-E-A-, 27 I. & N. Dec. 40 (BIA 2017)—
which affirmed that family may be a particular social group under
8 U.S.C. § 1158—was an intervening change of law warranting sua
sponte reopening. For the reasons stated below, Shafikova’s peti-
tion is dismissed for lack of jurisdiction.
I.
Around May 26, 2010, Shafikova entered the United States
with a J-1 visa that authorized her to stay in the country until Sep-
tember 1, 2010. However, she remained in the United States be-
yond that period without authorization. As a result, Shafikova was
charged in a notice to appear as removable under
8 U.S.C. § 1227(a)(1)(B)1 and was ordered to appear at a hearing
1 8 U.S.C. § 1227(a)(1)(B) states: “Any [noncitizen] who is present in the United
States in violation of this chapter or any other law of the United States, or
whose nonimmigrant visa (or other documentation authorizing admission
into the United States as a nonimmigrant) has been revoked under section
1201(i) of this title, is deportable.”
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22-12929 Opinion of the Court 3
before an immigration judge (IJ). At the hearing, Shafikova admit-
ted to these allegations.
Prior to the hearing, Shafikova applied for asylum, withhold-
ing of removal, and relief under the United Nations Convention
Against Torture and Other Cruel, Inhuman, or Degrading Treat-
ment or Punishment (CAT). In a declaration in support of her ap-
plication, Shafikova stated that her father owned a car service cen-
ter in Surxondaryo Province, Uzbekistan, but the family later
moved to Tashkent, the capital of Uzbekistan.
In 2007, Shafikova’s father stated that he was being moni-
tored and he started to spend more time in Surxondaryo running
his car service center. Later that year, the car service center was
taken away, and her father’s property was seized because he alleg-
edly did not pay his taxes. Shafikova’s father tried to challenge the
seizure in court, but the courts would not consider his case. In
February 2008, Shafikova’s sister’s business was set on fire. The
police wrote a report, but the perpetrator was never found.
Shafikova added that she often heard her parents arguing
about her father’s adverse political views towards the president of
Uzbekistan and her father’s membership in a group protesting the
human rights situation there. In September 2008, Shafikova’s fa-
ther disappeared. The next month, a police officer told Shafikova’s
mother that he was in prison and could be released only if they paid
$25,000. The family had to sell their car and personal belongings,
but eventually raised and paid the money. When Shafikova’s
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4 Opinion of the Court 22-12929
father was finally brought back home, he was seriously ill, covered
in bruises, and limping.
Shafikova also relayed an incident from June 2009. While
waiting for the 11:00 p.m. bus, she was kidnapped at knifepoint by
two men in a car. The men put Shafikova in handcuffs, blindfolded
her, and drove her to an apartment where they beat and raped her.
The next day, the men drove her back and threw her onto the
street. Shafikova told no one about what happened except her boy-
friend, an American citizen named John. John suggested that it
would be better for Shafikova to come to America. In 2010, Shafi-
kova came to America on a student visa and lived with John. In
July 2011, John left for Tashkent, and Shafikova has not seen or
heard from him since.
At the hearing, the IJ issued an oral decision denying Shafi-
kova’s applications for asylum, withholding of removal, and CAT
relief. The IJ found that Shafikova failed to provide sufficient evi-
dence to support her claim that she was persecuted on account of
a protected ground.
Shafikova timely appealed the IJ’s decision to the BIA. The
BIA dismissed her appeal because it agreed that Shafikova did not
meet her burden of proof to show that she suffered past persecu-
tion or that she has a well-founded fear of harm based on a pro-
tected ground. The BIA found that there was neither sufficient ev-
idence to show a nexus between the events Shafikova suffered and
the Uzbekistani government nor was there a clear probability that
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22-12929 Opinion of the Court 5
she would suffer torture in Uzbekistan. Shafikova did not seek re-
view of the BIA’s decision.
In March 2014, Shafikova timely moved to reopen and re-
consider her removal proceedings with country reports and letters
in support of her claim of persecution due to her father’s political
opinion. The BIA denied the motion because Shafikova did not
present any new or previously unavailable evidence. It also noted
that the motion included several documents that had not been
translated as required by 8 C.F.R. § 1003.33 and therefore could not
be considered.
In June 2014, Shafikova moved to reconsider. She argued
that her attorney supplemented her motion to reconsider with the
translated documents. She also noted that the BIA’s decision said
that the Department of Homeland Security (DHS) had not filed a
response to her motion to reopen, but DHS had filed a response on
April 4, 2014. The BIA considered the translated documents but
denied the motion because nothing in the documents presented
any new or previously unavailable evidence likely to change the
result of the case.
In June 2017, Shafikova filed an untimely second motion to
reopen and reconsider based on the BIA’s decision in Matter of
L-E-A-. Shafikova argued that Matter of L-E-A- affirmed that imme-
diate family members may constitute a particular social group and
that an applicant must show that a family relationship was at least
one central reason for the claimed harm in support of an asylum
claim. Shafikova urged the BIA to reopen her proceedings and
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6 Opinion of the Court 22-12929
remand her case for reconsideration under Matter of L-E-A- because
she was found to be credible and would have prevailed but for the
nexus issues.
Between July 2017 and May 2022, Shafikova supplemented
her second motion to reopen and reconsider five times. These sup-
plements largely reiterated her arguments about Matter of L-E-A-,
and included: (1) documents regarding the death of her father and
letters from family members, (2) evidence that she was complying
with supervision, (3) country reports of human rights abuses in Uz-
bekistan, and (4) a statement from a Uzbekistan expert about how
family units are targets of political oppression in Uzbekistan.
In August 2022, the BIA denied Shafikova’s second motion
to reopen and reconsider. The BIA noted Shafikova’s first two sup-
plements, but concluded that her second motion was both number
barred and untimely under 8 U.S.C. § 1229a(c)(7)(A), (c)(7)(C)(i).2
It also explained that Matter of L-E-A- was not a fundamental change
in law that would qualify as an exceptional situation meriting the
exercise of its sua sponte authority, as it was merely an incremental
or incidental change clarifying existing requirements for claims in-
volving particular social groups. The BIA concluded that Shafikova
did not establish an exceptional circumstance warranting sua sponte
reopening of her untimely and number-barred motion and
2 Under 8 U.S.C. § 1229a(c)(7)(A), a noncitizen “may file one motion to reopen
proceedings.” Section 1229a(c)(7)(C)(i) provides that “the motion to reopen
shall be filed within 90 days of the date of entry of a final administrative order
of removal.”
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22-12929 Opinion of the Court 7
therefore denied her motion to reopen. Shafikova timely peti-
tioned for review.
II.
We review de novo questions of law and our subject matter
jurisdiction. Ponce Flores v. U.S. Att’y Gen., 64 F.4th 1208, 1217 (11th
Cir. 2023). “We review the [BIA’s] denial of a motion to reopen
removal proceedings for abuse of discretion.” Li v. U.S. Att’y Gen.,
488 F.3d 1371, 1374 (11th Cir. 2007) (per curiam). “This review is
limited to determining whether the BIA exercised its discretion in
an arbitrary or capricious manner.” Zhang v. U.S. Att’y Gen.,
572 F.3d 1316, 1319 (11th Cir. 2009) (per curiam). “The moving
party bears a heavy burden, as motions to reopen are disfavored,
especially in removal proceedings.” Id. (citations omitted).
“Claims that the BIA failed to give reasoned consideration to an
issue or claims of legal error are questions of law[]” we review de
novo. Morales v. U.S. Att’y Gen., 33 F.4th 1303, 1307 (11th Cir. 2022).
III.
Shafikova argues that the BIA abused its discretion by refus-
ing to reopen proceedings sua sponte and violated her due process
rights. She contends that the BIA violated her due process rights
when it failed to give her motion “reasoned consideration” because
it (1) misstated the record and (2) overlooked a significant compo-
nent of her claim. As proof, Shafikova notes that the BIA failed to
reference her final three supplements and previously mishandled
other parts of the record because it asked her to resend her motion
and first two supplements. We disagree.
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8 Opinion of the Court 22-12929
The BIA has the authority to reopen removal proceedings
sua sponte at any time and has broad discretion over such actions.
See Butka v. U.S. Att’y Gen., 827 F.3d 1278, 1283 (11th Cir. 2016);
8 C.F.R. § 1003.2(a). But it will exercise this authority only in ex-
ceptional circumstances, such as a fundamental change in law.
Butka, 827 F.3d at 1283. “[W]e have held on several occasions that
we lack jurisdiction to review a decision of the BIA not to exercise
its power to reopen a case sua sponte.” Bing Quan Lin v. U.S. Att’y
Gen., 881 F.3d 860, 871 (11th Cir. 2018). That includes the BIA’s
determination of whether there was a fundamental change in the
law. See Butka, 827 F.3d at 1286. “We have observed that we may
retain jurisdiction where constitutional claims are raised relating to
the BIA’s refusal to reopen sua sponte.” Bing Quan Lin, 881 F.3d at
871; see also Butka, 827 F.3d at 1286 & n.7. But we lack jurisdiction
over a constitutional claim that is not colorable. Ponce Flores,
64 F.4th at 1217.
We lack jurisdiction to consider Shafikova’s argument that
the BIA failed to give “reasoned consideration” when exercising its
discretion not to reopen proceedings sua sponte. That standard of
review derives from 8 U.S.C. § 1252(b)(4) and 8 C.F.R.
§ 208.16(c)(3)—not the U.S. Constitution.3 See Perez-Guerrero v.
U.S. Att’y Gen., 717 F.3d 1224, 1232 (11th Cir. 2013) (per curiam).
3 Even if we considered Shafikova’s “reasoned consideration” argument, we
would conclude that the BIA met that standard. “Under controlling prece-
dent, we are tasked with affirming the BIA’s decision if it is based on ‘reasoned
consideration’ and shows that the BIA has ‘made adequate findings’ to support
its outcome.” Bing Quan Lin v. U.S. Att’y Gen., 881 F.3d 860, 872 (11th Cir.
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22-12929 Opinion of the Court 9
Shafikova’s procedural due process argument fails too, even
if we have jurisdiction to review it. A “[p]rocedural due process
claim[] must assert a deprivation of a constitutionally protected lib-
erty or property interest.” Bing Quan Lin, 881 F.3d at 868–69.
“‘[F]ailure to receive relief that is purely discretionary in nature
does not amount to a deprivation of a liberty interest’ and thus can-
not deprive [a noncitizen] of due process under the Fifth Amend-
ment.” Ponce Flores, 64 F.4th at 1218 (quoting Mejia Rodriguez v.
2018) (quoting Gaksakuman v. U.S. Att’y Gen., 767 F.3d 1164, 1168 (11th Cir.
2014)). The BIA must “consider the issues raised and announce its decision in
terms sufficient to enable a reviewing court to perceive that it has heard and
thought and not merely reacted.” Tan v. U.S. Att’y Gen., 446 F.3d 1369, 1374
(11th Cir. 2006) (quoting Vergara-Molina v. INS, 956 F.2d 682, 685 (7th Cir.
1992)).
Despite her arguments to the contrary, the BIA provided a reasoned basis
for its decision: Shafikova’s motion was both number-barred and untimely un-
der 8 U.S.C. § 1229a(c)(7)(A), (c)(7)(C)(i). That alone is a “reasonable ground”
for the BIA to rely on in declining to exercise its discretionary power to reopen
Shafikova’s proceedings. See Bing Quan Lin, 881 F.3d at 875. And that ground
is supported by adequate findings: (1) Shafikova’s motion was filed on June 13,
2017, several years after the final administrative order was entered in the case,
and (2) Shafikova had filed a motion to reopen, which was denied on June 13,
2014, and a motion to reconsider, which was denied on August 7, 2014.
Moreover, the BIA’s failure to list Shafikova’s final three supplements and
its previous request for Shafikova to resend documents does not “force[] us to
doubt whether we and the [BIA] are, in substance, looking at the same case.”
Martinez v. U.S. Att’y Gen., 992 F.3d 1283, 1294 (11th Cir. 2021) (second altera-
tion in original) (quoting Ali v. U.S. Att’y Gen., 931 F.3d 1327, 1334 (11th Cir.
2019)). The BIA explained that Matter of L-E-A- was not a fundamental change
in the law, which shows that the BIA “heard and thought” about Shafikova’s
claim and had reasonable grounds to reject it.
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10 Opinion of the Court 22-12929
Reno, 178 F.3d 1139, 1146 (11th Cir. 1999)). “What’s more, we have
specifically identified . . . motions to reopen [or reconsider] as dis-
cretionary forms of relief as to which there is no constitutionally
protected interest.” Bing Quan Lin, 881 F.3d at 869. Shafikova has
no right to remain in the United States because she was ordered
removed after receiving all the process she was due.
See Arambula-Medina v. Holder, 572 F.3d 824, 829 (10th Cir. 2009)
(concluding that the only protections afforded to noncitizens seek-
ing to remain in the United States “are the minimal procedural due
process rights for an opportunity to be heard at a meaningful time
and in a meaningful manner” (quoting de la Llana-Castellon v. INS,
16 F.3d 1093, 1096 (10th Cir. 1994))). The Fifth Amendment there-
fore does not require the BIA to grant Shafikova relief because she
has no protected liberty interest in a motion to reopen and recon-
sider—much less a second motion to reopen and reconsider.
See Bing Quan Lin, 881 F.3d at 869.
IV.
Accordingly, we dismiss Shafikova’s petition for review for
lack of jurisdiction.
PETITION DISMISSED.
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