Juan Jose Gushiken Ayala v. U.S. Attorney General

[DO NOT PUBLISH]
In the
United States Court of Appeals
For the Eleventh Circuit
____________________
No. 21-12545
Non-Argument Calendar
____________________
JUAN JOSE GUSHIKEN AYALA,
Petitioner,
versus
U.S. ATTORNEY GENERAL,
Respondent.
____________________
Petition for Review of a Decision of the
Board of Immigration Appeals
Agency No. A087-133-525
____________________
USCA11 Case: 21-12545 Date Filed: 05/12/2022 Page: 1 of 4

-- 1 of 4 --

2 Opinion of the Court 21-12545
Before JILL PRYOR, BRANCH, and MARCUS, Circuit Judges.
PER CURIAM:
Juan Gushiken Ayala appeals the Board of Immigration Ap-
peals’s (“BIA”) denial of his motion to reopen his removal proceed-
ings pursuant to its
sua sponte authority. But because the BIA’s
decision whether to reopen
sua sponte is committed to the
agency’s discretion, we dismiss Ayala’s petition for review for lack
of jurisdiction.
We review
de novo our own subject matter jurisdiction.
Jeune v. U.S. Att’y Gen., 810 F.3d 792, 799 (11th Cir. 2016). Gener-
ally, when an appellant fails to offer argument on an issue, that is-
sue is deemed abandoned.
Lapaix v. U.S. Att’y Gen., 605 F.3d 1138,
1145 (11th Cir. 2010). Likewise, arguments not raised in a peti-
tioner’s initial brief are deemed abandoned.
Timson v. Sampson,
518 F.3d 870, 874 (11th Cir. 2008).
The Immigration and Nationality Act (“INA”) permits a
non-citizen to file one motion to reopen removal proceedings.
See
8 U.S.C. § 1229a(c)(7)(A); 8 C.F.R. § 1003.2(c)(2). Subject to certain
statutory exceptions and equitable tolling, a motion to reopen
must be filed within 90 days of the entry of a final administrative
removal order. 8 U.S.C. § 1229a(c)(7)(C)(i); 8 C.F.R. § 1003.2(c)(2);
Butka v. U.S. Att’y Gen., 827 F.3d 1278, 1283 (11th Cir. 2016). We
have jurisdiction to review the BIA’s denial of a petitioner’s motion
for statutory reopening.
Butka, 827 F.3d at 1283.
USCA11 Case: 21-12545 Date Filed: 05/12/2022 Page: 2 of 4

-- 2 of 4 --

21-12545 Opinion of the Court 3
The BIA also has the authority to reopen removal proceed-
ings
sua sponte at any time.
Id.; 8 C.F.R. § 1003.2(a). No statute
expressly authorizes the BIA to reopen cases
sua sponte; rather, the
regulation at issue derives from a statute that grants general au-
thority over immigration and nationalization matters to the Attor-
ney General and sets no standard for the Attorney General’s deci-
sion-making in this context.
Lenis v. U.S. Att’y Gen., 525 F.3d 1291,
1293 (11th Cir. 2008). A non-citizen can file a written motion with
the BIA asking it to exercise its
sua sponte authority to reopen re-
moval proceedings.
Butka, 827 F.3d at 1283; 8 C.F.R. § 1003.2(a).
Whether to grant or deny such a motion is entirely within the BIA’s
discretion.
Lenis, 525 F.3d at 1293–94. Unlike the denial of statu-
tory reopening, we lack jurisdiction to review the BIA’s denial of a
motion to reopen pursuant to its
sua sponte authority because such
a determination is committed to agency discretion by law and there
is no meaningful standard against which to judge the agency’s ex-
ercise of discretion.
Id.;
Butka, 827 F.3d at 1285–86. We have ex-
pressly left open the question of whether we may exercise jurisdic-
tion over constitutional claims related to an underlying request for
sua sponte reopening.
Butka, 827 F.3d at 1285 n.6 (citing
Lenis,
525 F.3d at 1294 n.7). In asserting a constitutional claim, a peti-
tioner must allege at least a colorable constitutional violation.
Arias v. U.S. Att’y Gen., 482 F.3d 1281, 1284 (11th Cir. 2007).
Due process claims must assert a deprivation of a constitu-
tionally protected liberty or property interest.
Bing Quan Lin v.
U.S. Att’y Gen., 881 F.3d 860, 868–69 (11th Cir. 2018). There is no
USCA11 Case: 21-12545 Date Filed: 05/12/2022 Page: 3 of 4

-- 3 of 4 --

4 Opinion of the Court 21-12545
constitutionally protected interest in purely discretionary forms of
relief -- including motions to reopen.
Id. at 869;
Scheerer v. U.S.
Att’y Gen., 513 F.3d 1244, 1253 (11th Cir. 2008).
Here, Ayala’s motion to the BIA asked that it exercise its dis-
cretion to
sua sponte reopen his cancellation of removal proceed-
ings under 8 C.F.R. § 1103.2(c).1 However, we lack jurisdiction
over this claim.
See Lenis, 525 F.3d at 1294 (holding that we lack
jurisdiction to review the BIA’s denial of a motion to reopen
sua
sponte). And while Ayala argues in his reply brief that he brought
both legal claims and a constitutional claim premised on due pro-
cess violations, his initial brief before us does not develop a due
process claim nor any other constitutional claim. Therefore, he
abandoned any arguments concerning a constitutional claim and
we decline to consider them.
Timson, 518 F.3d at 874. In any
event, Ayala cannot establish a colorable due process claim be-
cause, as our case law has established, he possesses no constitution-
ally protected liberty or property interest in a motion to reopen
sua
sponte.
See Bing Quan Lin, 881 F.3d at 868–69;
Scheerer, 513 F.3d
at 1253.
PETITION DISMISSED.
1 Indeed, Ayala’s motion only invoked the BIA’s
sua sponte authority and
made no refence to statutory reopening, nor did it cite to the statute, 8 U.S.C.
§ 1229a(c)(7)(A). As a result, Ayala abandoned any claim that his motion
should have been construed as one seeking statutory reopening.
See Lapaix,
605 F.3d at 1145.
USCA11 Case: 21-12545 Date Filed: 05/12/2022 Page: 4 of 4

-- 4 of 4 --