Robert Kesse v. U.S. Attorney General

[DO NOT PUBLISH]
In the
United States Court of Appeals
For the Eleventh Circuit
____________________
No. 21-14405
Non-Argument Calendar
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ROBERT KESSE,
Petitioner,
versus
U.S. ATTORNEY GENERAL,
Respondent.
____________________
Petition for Review of a Decision of the
Board of Immigration Appeals
Agency No. 096-441-960
____________________
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2 Opinion of the Court 21-14405
Before WILSON, L UCK , and MARCUS, Circuit Judges.
PER CURIAM:
Robert Kesse, an Ivory Coast national proceeding through
counsel, seeks review of the Board of Immigration Appeals’ (“BIA”)
final order affirming the Immigration Judge’s (“IJ”) denial of his
motion to reopen his removal proceedings. Before he filed the mo-
tion to reopen, the IJ had granted him voluntary departure and en-
tered an alternate order of removal, but Kesse failed to depart by
the voluntary departure deadline. In the instant petition, Kesse ar-
gues that: (1) the penalties for failing to voluntarily depart -- which
make him ineligible for adjustment of status for 10 years -- do not
apply to him because the government failed to remove him after
he provided his plane ticket and luggage and signed a request for
travel documents; and (2) the BIA erred by determining that his
motion was untimely. After careful review, we deny the petition
for review.
I.
We only review the final BIA determination unless the BIA
expressly adopts the IJ’s decision or relies upon its reasoning.
Tang
v. U.S. Att’y Gen., 578 F.3d 1270, 1275 (11th Cir. 2009). We have
an obligation to inquire into our own jurisdiction
sua sponte, and
we review jurisdictional questions
de novo.
Lin v. U.S. Att’y Gen.,
881 F.3d 860, 866 (11th Cir. 2018). We lack jurisdiction to review a
BIA decision not to
sua sponte reopen removal proceedings, but
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21-14405 Opinion of the Court 3
we can consider the denial of a motion to reopen pursuant to stat-
utory requirements, the BIA’s legal reasoning, and the sufficiency
of the decision.
Id. at 871.
We review the denial of a motion to reopen removal pro-
ceedings for abuse of discretion, but review claims of legal error
de
novo.
Id. at 872. Eligibility for adjustment of status is a legal con-
clusion.
See Alvarez Acosta v. U.S. Att’y Gen., 524 F.3d 1191, 1197
n.14 (11th Cir. 2008). The BIA abuses its discretion if it exercises its
discretion arbitrarily or capriciously.
Lin, 881 F.3d at 872. The
party moving to reopen bears a heavy burden because those mo-
tions are disfavored, especially in removal proceedings.
Id. When
a movant seeks to adjust his status, the BIA has discretion to deny
the motion because he failed to establish a
prima facie case of eligi-
bility for adjustment of status.
Chacku v. U.S. Att’y Gen., 555 F.3d
1281, 1286 (11th Cir. 2008). The BIA generally cannot engage in
de
novo factfinding on appeal.
See 8 C.F.R. § 1003.1(d)(3).
We review whether the BIA afforded a petition reasoned
consideration
de novo.
Ali v. U.S. Att’y Gen., 931 F.3d 1327, 1333
(11th Cir. 2019). The BIA must consider the issues raised and an-
nounce its decision in terms sufficient to enable review.
See In-
drawati v. U.S. Att’y Gen., 779 F.3d 1284, 1302 (11th Cir. 2015). We
have sustained reasoned consideration claims in three general cir-
cumstances: when the BIA (1) misstates the contents of the record,
(2) fails to adequately explain its rejection of logical conclusions, or
(3) provides justifications for its decision which are unreasonable
and unresponsive to arguments in the record.
Ali, 931 F.3d at 1334.
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4 Opinion of the Court 21-14405
The BIA need not discuss all record evidence but must implicitly
or explicitly acknowledge highly relevant evidence that would
compel a different outcome absent discussion of the evidence.
Id.;
Farah v. U.S. Att’y Gen., 12 F.4th 1312, 1329 (11th Cir. 2021).
A petitioner seeking review of a BIA decision abandons is-
sues not raised in his brief on appeal.
Sepulveda v. U.S. Att’y Gen.,
401 F.3d 1226, 1228 n.2 (11th Cir. 2005). We can consider an aban-
doned issue
sua sponte only if a forfeiture exception applies and
extraordinary circumstances warrant review.
United States v.
Campbell, 26 F.4th 860, 873 (11th Cir.) (
en banc),
cert. denied, 2022
WL 4651666 (Oct. 3, 2022).
II.
We are unpersuaded by Kesse’s argument that the BIA
abused its discretion in concluding that he had not established that
his failure to depart was involuntary. An alien who is granted vol-
untary departure but voluntarily fails to depart within the allotted
time is ineligible for adjustment of status pursuant to the Immigra-
tion and Nationality Act (“INA”), 8 U.S.C. § 1255(a), as well as other
forms of relief, for 10 years. 8 U.S.C. § 1229c(d)(1)(B). The BIA has
concluded that, under the “voluntariness exception,” an alien who
is physically unable to depart through no fault of his own is not
subject to the penalty for failing to depart.
In re Zmijewska, 24
I&N Dec. 87, 94 (BIA 2007). As a condition of voluntary departure
prior to the completion of removal proceedings, an alien must pre-
sent the Department of Homeland Security (“DHS”) his passport
or other travel document sufficient to assure entry into the country
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21-14405 Opinion of the Court 5
to which he is departing unless a travel document is unnecessary
or the DHS already possesses the document. 8 C.F.R. §
1240.26(b)(3)(i).
Here, the BIA did not abuse its discretion in concluding that
Kesse failed to show that his failure to depart was involuntary and,
therefore, that he failed to establish a
prima facie case of eligibility
for removal.
See Chacku, 555 F.3d at 1286;
Alvarez-Acosta, 524
F.3d at 1197 n.14; 8 U.S.C. § 1229c(d)(1)(B). As we’ve explained,
Kesse sought to show that the penalties for failing to voluntarily
depart -- which include making him ineligible for adjustment of sta-
tus for 10 years -- did not apply to him. In order to do so, he needed
to provide the DHS with a travel document sufficient to assure his
entry into the Ivory Coast. 8 C.F.R. § 1240.26(b)(3)(i).
But, as the record reflects, Kesse only offered as evidence an
expired passport, tickets to fly to the Ivory Coast, and a
post-dead-
line e-mail from his counsel to ICE asking for his removal to be
expedited. He also said in his motion that his counsel had delivered
his ticket and luggage to ICE, and the record indicated that he was
detained. These materials -- and, in particular, the expired passport
-- were insufficient to establish a prima facie case of eligibility for
removal.
See id. As for his claim that he signed a request for a
travel document from the Ivory Coast’s embassy, we can find noth-
ing in the record to support it.
As for the BIA’s refusal to consider new evidence Kesse of-
fered on appeal, this decision was proper, and, in any event, he has
abandoned any challenge to that refusal.
See 8 C.F.R. §
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6 Opinion of the Court 21-14405
1003.1(d)(3);
Sepulveda, 401 F.3d at 1228 n.2. He also has aban-
doned any argument that the BIA failed to afford him reasoned
consideration and, again, the record reveals that the BIA suffi-
ciently considered the issue of voluntariness.
See Sepulveda, 401
F.3d at 1228 n.2. Finally, because we conclude that the BIA did not
abuse its discretion in affirming the IJ’s denial of his motion to reo-
pen his removal proceedings, we need not address whether the mo-
tion was untimely.
PETITION DENIED.
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