Chituru C. Umesi v. U.S. Attorney General

[DO NOT PUBLISH]

IN THE UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT
________________________

No. 19-14979
Non-Argument Calendar
________________________

Agency No. A076-243-239

CHITURU C. UMESI,

Petitioner,

versus

U.S. ATTORNEY GENERAL,

Respondent.
________________________

Petition for Review of a Decision of the
Board of Immigration Appeals
________________________
(July 24, 2020)
Before JORDAN, GRANT and LUCK, Circuit Judges.

PER CURIAM:
Case: 19-14979 Date Filed: 07/24/2020 Page: 1 of 5

2

Chituru Umesi seeks review of the Board of Immigration Appeals’ affirmance
of an Immigration Judge’s denial of his motion to sua sponte reopen his removal
proceedings. Because we lack jurisdiction to review the BIA’s decision not to
exercise its sua sponte authority to reopen removal proceedings, we dismiss Mr.
Umesi’s petition.
I
Mr. Umesi, a citizen and native of Nigeria, entered the United States in March
of 1993 as a non-immigrant visitor. Mr. Umesi had authorization to remain in the
country until September of 1993, but he stayed in the United States beyond that date.
The former Immigration and Naturalization Service commenced removal
proceedings against him on June 24, 2003 through the issuance of a Notice to
Appear. The Notice alleged that Mr. Umesi was removable under § 237(a)(1)(B) of
the Immigration and Nationality Act, 8 U.S.C. § 1227(a)(1)(B), for remaining in the
United States for longer than permitted.
At a hearing before the IJ on September 25, 2007, Mr. Umesi requested and
was granted voluntary departure in lieu of removal. He was ordered to leave the
United States no later than January 23, 2008. He did not, however, depart the
country as ordered.
About 10 years later, on January 26, 2018, Mr. Umesi filed a motion to reopen
his removal proceedings sua sponte. He sought an adjustment of status pursuant to
Case: 19-14979 Date Filed: 07/24/2020 Page: 2 of 5

3

an I-130 petition based on his relationship with his brother, a United States citizen.
He also argued that exceptional circumstances warranted a sua sponte reopening of
his removal proceedings, including that he had lived in the United States for 24
years, he had lived with his wife for 13 years, and he and his wife both had medical
conditions that would be negatively impacted by his removal.
On March 22, 2018, the IJ denied Mr. Umesi’s motion, finding that his
circumstances were not “truly exceptional” such that sua sponte reopening was
warranted. On November 15, 2019, the BIA summarily affirmed the IJ’s ruling.
Mr. Umesi now petitions for review of the BIA’s decision.
II
We review our own jurisdiction de novo. See Chao Lin v. U.S. Att’y Gen.,
677 F.3d 1043, 1045 (11th Cir. 2012). “When the BIA summarily affirms the IJ’s
decision without an opinion, the IJ’s decision becomes the final removal order.”
Alim v. Gonzales, 446 F.3d 1239, 1254 (11th Cir. 2006) (citation and internal
quotation marks omitted).
III
Under the INA, an alien may file one statutory motion to reopen removal
proceedings, which generally must be filed within 90 days of the entry of the final
order of removal. See Butka v. U.S. Att’y Gen., 827 F.3d 1278, 1283 (11th Cir.
2016). In addition, an IJ or the BIA may reopen removal proceedings sua sponte at
Case: 19-14979 Date Filed: 07/24/2020 Page: 3 of 5

4

any time. See Bing Quan Lin v. U.S. Att’y Gen., 881 F.3d 860, 872 (11th Cir. 2018)
(citing 8 C.F.R. §§1003.2(a), 1003.23(b)(1)). Reopening removal proceedings sua
sponte is “an extraordinary remedy reserved for truly exceptional situations.” In re
G—D—, 22 I&N Dec. 1132, 1134 (BIA 1999). In his motion to reopen, Mr. Umesi
acknowledged that his motion was untimely under the INA and requested that the IJ
reopen his removal proceedings sua sponte.
We generally lack jurisdiction to review a decision of an IJ or the BIA
declining to exercise their sua sponte reopening authority. See Lenis v. U.S. Att’y
Gen., 525 F.3d 1291, 1294 (2008) (“[T]he BIA’s decision whether to reopen
proceedings on its own motion pursuant to 8 C.F.R. § 1003.2(a) is committed to
agency discretion by law. We are, therefore, constrained to conclude that we lack
jurisdiction to review the BIA’s decision in this case.”). This is because “under the
Administrative Procedure Act, judicial review is not available when agency action
is committed to agency discretion by law.” Id. at 1293 (citation and internal
quotation marks omitted). We do, however, have jurisdiction to review
constitutional claims and questions of law related to the BIA’s discretionary
decisions. See Bing Quan Lin, 881 F.3d at 871.
Here, Mr. Umesi argues that the IJ abused its discretion in finding that he did
not satisfy the exceptional circumstance requirement. See Petition at 16–21. But he
does not raise any constitutional claims or questions of law. See id. We therefore
Case: 19-14979 Date Filed: 07/24/2020 Page: 4 of 5

5

lack jurisdiction to entertain this petition. Accordingly, we dismiss Mr. Umesi’s
petition for review.
PETITION DISMISSED.

Case: 19-14979 Date Filed: 07/24/2020 Page: 5 of 5