Eduardo Fernando Bracamonte Verastegui, et al v. U.S. Attorney General

[DO NOT PUBLISH]
In the
United States Court of Appeals
For the Eleventh Circuit
____________________
No. 22-10049
Non-Argument Calendar
____________________
EDUARDO FERNANDO BRACAMONTE VERASTEGUI,
JENNY G. BERMUDEZ AVILES,
Petitioners,
versus
U.S. ATTORNEY GENERAL,
Respondent.
____________________
Petition for Review of a Decision of the
Board of Immigration Appeals
Agency No. A201-076-327
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2 Opinion of the Court 22-10049
____________________
Before J ORDAN, B RANCH, and ANDERSON, Circuit Judges.
PER CURIAM:
Eduardo Bracamonte Verastegui and Jenny Bermudez
Aviles, who are husband and wife and citizens of Bolivia, petition
for review of the Board of Immigration Appeals’ order denying
their motion to
sua sponte reopen removal proceedings and stay
removal. Upon review of the record and the parties’ briefs, we dis-
miss the petition for lack of jurisdiction.
In October of 2013, an immigration judge denied the appli-
cations of Mr. Bracamonte Verastegui and Ms. Bermudez Aviles
for cancellation of removal under § 240A(b)(1) of the Immigration
and Nationality Act, 8 U.S.C. § 1229b(b). They appealed the deci-
sion to the BIA and following the denial of that appeal, filed various
motions to reopen and for reconsideration of the BIA’s decision.
Mr. Bracamonte Verastegui and Ms. Bermudez Aviles now appeal
the BIA’s December 17, 2021 decision, denying their fifth motion
to reopen or reconsider.
Mr. Bracamonte Verastegui and Ms. Bermudez Aviles have
previously petitioned this Court for review of the BIA’s denials of
their motions to reopen or reconsider. Each time we have dis-
missed the petition for lack of jurisdiction.
See Bracamonte-
Verastegui v. U.S. Att’y Gen., No. 14-14293, slip. op. (11th Cir. May
13, 2015) (unpublished);
Bracamonte-Verastegui v. U.S. Att’y Gen.,
No. 16-10339, slip op. (11th Cir. Feb. 3, 2017) (unpublished);
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22-10049 Opinion of the Court 3
Bracamonte-Verastegui v. U.S. Att’y Gen., No. 18-11859, slip. op.
(11th Cir. Feb. 14, 2019) (unpublished). Following review of the
petition in this case, we come to the same conclusion.
The Immigration and Nationality Act allows a petitioner to
file one “statutory” motion to reopen removal proceedings.
See 8
U.S.C. § 1229a(c)(7)(A). While this Court has jurisdiction to review
the BIA’s denial of such motions,
see Butka v. U.S. Att’y Gen., 827
F.3d 1278, 1283 (11th Cir. 2016), the current motion was filed pur-
suant to the BIA’s
sua sponte authority to reopen removal proceed-
ings. And we have “squarely held” that we “lack[ ] jurisdiction to
review a BIA decision denying a petitioner’s motion for
sua sponte
reopening.”
Butka, 827 F.3d at 1283.
See also Lenis v. U.S. Att’y
Gen., 525 F.3d 1291, 1292 (11th Cir. 2008) (holding this Court lacks
jurisdiction “to review the BIA’s denial of a motion to reopen the
underlying immigration proceedings based on its
sua sponte au-
thority”);
Butalova v. U.S. Att’y Gen., 768 F.3d 1179, 1182 (11th Cir.
2014) (“We lack jurisdiction to review any BIA decision the [Immi-
gration and Nationality Act] makes discretionary.”).
We note, of course, that this jurisdictional bar does not ex-
tend to petitions that raise colorable constitutional claims or ques-
tions of law.
See 8 U.S.C. § 1252(a)(2)(D).
See also Butalova, 768
F.3d at 1183 (“Notwithstanding the jurisdiction-stripping provi-
sions of INA § 242(a)(2)(B)(ii), 8 U.S.C. § 1252(a)(2)(B)(ii), we retain
jurisdiction to review constitutional challenges and questions of
law.”). A constitutional claim is “colorable” when it has “some
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4 Opinion of the Court 22-10049
possible validity.”
Arias v. U.S. Att’y Gen., 482 F.3d 1281, 1284 n.2
(11th Cir. 2007).
Mr. Bracamonte Verastegui and Ms. Bermudez Aviles state
in their petition that they requested relief from removal “based on
the exceptional and extremely unusual hardship that would” inflict
on their United States citizen son, Andrew.
See Appellants’ Br. at
12. They contend that the immigration judge “failed to carefully
examine the evidence in the record” and that they were denied due
process.
Id. at 22. Although Mr. Bracamonte Verastegui and Ms.
Bermudez Aviles again—as in their previous petitions—“cloak
their argument in due process language, they are [still] simply chal-
lenging the BIA’s discretionary hardship determination.”
Braca-
monte-Verastegui v. U.S. Att’y Gen., No. 14-14293, slip op. at 3
(11th Cir. May 13, 2015) (unpublished);
Bracamonte-Verastegui v.
U.S. Att’y Gen., No. 16-10339, slip op. at 3 (11th Cir. Feb. 3, 2017)
(unpublished).
We explained in the prior petitions—in 2015, 2017, and
2019—that “the BIA’s hardship determination involved a form of
discretionary relief which we cannot review.”
Bracamonte-
Verastegui v. U.S. Att’y Gen., No. 18-11859, slip. op. at 2 (11th Cir.
Feb. 14, 2019) (unpublished). We find no reason to conclude dif-
ferently today.
See Butalova, 768 F.3d at 1183 (“[A]n argument that
the BIA abused its discretion by failing to weigh an alien’s factual
scenario presents a ‘garden-variety abuse of discretion argument—
which can be made by virtually every alien subject to a final re-
moval order—[and] does not amount to a legal question under §
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22-10049 Opinion of the Court 5
1252(a)(2)(D).’”) (quoting
Alvarez Acosta v. U.S. Att’y Gen., 524
F.3d 1191, 1196-97 (11th Cir. 2008)). Thus, we lack jurisdiction to
review the BIA’s discretionary decision not to
sua sponte reopen
proceedings.
Mr. Bracamonte Verastegui and Ms. Bermudez Aviles also
argue that their rights were violated because a three-member panel
did not review the immigration judge’s decision. As we explained
before when presented with this same issue earlier, “[t]his argu-
ment also cannot form the basis of a constitutional claim, as there
is ‘no constitutionally protected interest in purely discretionary
forms of relief.’”
Bracamonte-Verastegui v. U.S. Att’y Gen., No.
14-14293, slip op. at 3 (11th Cir. May 13, 2015) (unpublished) (quot-
ing
Schreerer v. U.S. Att’y Gen., 513 F.3d 1244, 1253 (11th Cir.
2014)).
See also 8 C.F.R. § 1003.1(e)(6) (permitting but not requir-
ing the assignment of three-member BIA panels under certain cir-
cumstances.). We therefore also lack jurisdiction to review this
claim.
In the alternative, Mr. Bracamonte Verastegui and Ms. Ber-
mudez Aviles request that we remand the matter for administra-
tive closure because their case is “low priority.” However, they did
not raise this argument in their motion to the BIA for
sua sponte
reopening and stay of removal. This Court has “held that failure
to raise an issue to the BIA constitutes a failure to exhaust.”
Bing
Quan Lin v. U.S. Att’y Gen., 881 F.3d 860, 867 (11th Cir. 2018). And
because “failure to exhaust is jurisdictional,” “we lack jurisdiction
to consider claims that have not been raised before the BIA.”
Id.
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6 Opinion of the Court 22-10049
(quoting
Sundar v. I.N.S., 328 F.3d 1320, 1323 (11th Cir. 2003)).
Thus, we cannot consider the request that the matter be remanded
for administrative closure.
For the foregoing reasons, we dismiss the petition.
PETITION DISMISSED.
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