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

[DO NOT PUBLISH]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.
I.
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
Although Anchico Obando indicates that she previously raised a due process claim1
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.
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