Francisco Mateo Domingo v. U.S. Attorney General

[DO NOT PUBLISH]
In the
United States Court of Appeals
For the Eleventh Circuit
____________________
No. 21-11864
Non-Argument Calendar
____________________
FRANCISCO MATEO DOMINGO,
Petitioner,
versus
U.S. ATTORNEY GENERAL,
Respondent.
____________________
Petition for Review of a Decision of the
Board of Immigration Appeals
Agency No. A097-953-560
____________________
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2 Opinion of the Court 21-11864
Before WILSON, J ORDAN, and NEWSOM , Circuit Judges.
PER CURIAM:
Francisco Mateo Domingo challenges the Board of Immi-
gration Appeal’s (BIA) refusal to exercise its discretion to
sua
sponte reopen his 2013 deportation proceedings.1 After careful re-
view, we dismiss his petition for lack of jurisdiction.
I.
Domingo is a native and citizen of Guatemala. In August
1999, he arrived in the United States and has since remained in the
United States. In September 2011, following his second arrest for
driving under the influence of alcohol, the Department of Home-
land Security initiated removal proceedings against him. In Octo-
ber 2011, an Immigration Judge (IJ) determined Domingo was re-
movable. As relief from removal, Domingo filed an application for
cancellation of removal as a non-permanent resident.
On October 1, 2013, following a hearing, the IJ denied Do-
mingo’s cancellation of removal application because Domingo
failed to establish that his six-year-old daughter would suffer
1 The Immigration and Nationality Act (INA) permits a non-citizen to file one
motion to reopen removal proceedings.
See INA § 240(c)(7)(A), 8 U.S.C.
§ 1229a(c)(7)(A). Such a motion, known as a statutory motion to reopen, must
generally be filed within 90 days of the entry of a final administrative removal
order.
See INA § 240(c)(7)(C)(i), 8 U.S.C. § 1229a(c)(7)(C)(i); 8 C.F.R.
§ 1003.2(c)(2). The BIA also has the authority to reopen removal proceedings
sua sponte at any time.
See 8 C.F.R. § 1003.2(a).
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21-11864 Opinion of the Court 3
exceptional and extremely unusual hardship from his removal.
Domingo timely appealed to the BIA. In June 2014, the BIA agreed
with the IJ’s finding that Domingo failed to show an exceptional
and extremely unusual hardship and dismissed his appeal.
In July 2014, Domingo timely moved the BIA to reconsider
its determination. In October 2014, the BIA denied Domingo’s mo-
tion for reconsideration, and Domingo did not seek judicial review.
In December 2018, Domingo filed a motion to reopen the
BIA’s prior decision because his newborn daughter was diagnosed
with a rare condition that could lead to significant and chronic
health problems. The BIA construed Domingo’s motion as one
that sought “sua sponte reopening of his application based upon
new evidence of hardship.” The BIA denied Domingo’s motion,
stated that it made no factual findings, and discussed that the med-
ical evidence Domingo provided about his newborn daughter’s
condition reflected “normal findings.” Domingo timely petitioned
this Court for review of the BIA’s order.2
II.
On appeal, Domingo argues that the BIA departed from its
established standard in deciding Domingo’s motion to reopen by
2 We review de novo questions of subject-matter jurisdiction,
Butka v. U.S.
Att’y Gen., 827 F.3d 1278, 1282 n.4 (11th Cir. 2016), and apply the same stand-
ard of review to issues of law,
Perez-Sanchez v. U.S. Att’y Gen., 935 F.3d 1148,
1152 (11th Cir. 2019).
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4 Opinion of the Court 21-11864
prejudging the merits of his case before allowing Domingo to de-
velop the issues at a hearing before the BIA.
Before considering Domingo’s argument, we must deter-
mine the scope of our jurisdiction. We lack jurisdiction to review
decisions of the BIA refusing to reopen immigration proceedings in
exercise of its
sua sponte authority where that decision is commit-
ted to agency discretion.
Lenis v. U.S. Att’y Gen., 525 F.3d 1291,
1293 (11th Cir. 2008). Although we “may have jurisdiction over
constitutional claims related to the BIA’s decision not to exercise
its
sua sponte power” to reopen,
Id. at 1294 n.7, we lack jurisdiction
to review legal claims related to the BIA’s denial of a motion re-
questing it to
sua sponte reopen proceedings
. Butka v. U.S. Att’y
Gen., 827 F.3d 1278, 1285–86 (11th Cir. 2016).
Here, we lack jurisdiction to review the denial of Domingo’s
motion to reopen and any legal arguments that he made in support
of his motion. This is because we generally lack jurisdiction to re-
view a
sua sponte motion to reopen immigration proceedings
where Domingo does not raise any colorable constitutional claims
that we might have jurisdiction to consider.
See id. at 1285 n.6.
Instead, he argues that the BIA prejudged the merits of his request
which departed from its established practice in reviewing a motion
to reopen proceedings. This is merely a legal challenge to the BIA’s
denial of his motion to exercise its broad discretion to
sua sponte
reopen his application which precludes us from further review.
Id.
at 1283.
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21-11864 Opinion of the Court 5
We therefore must dismiss Domingo’s petition for lack of
jurisdiction.
PETITION DISMISSED.
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