Blanca Noemi Martinez-Rios v. U.S. Attorney General

[DO NOT PUBLISH]
In the
United States Court of Appeals
For the Eleventh Circuit
____________________
No. 22-13466
Non-Argument Calendar
____________________
BLANCA NOEMI MARTINEZ-RIOS,
Petitioner,
versus
U.S. ATTORNEY GENERAL,
Respondent.
____________________
Petition for Review of a Decision of the
Board of Immigration Appeals
Agency No. A038-779-434
____________________
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2 Opinion of the Court 22-13466
Before N EWSOM, A BUDU , and A NDERSON , Circuit Judges.
PER CURIAM:
Blanca Noemi Martinez-Rios, a native and citizen of Mexico,
petitions for review of the Board of Immigration Appeals’ order
denying her motion to reopen the proceedings that resulted in her
removal from the United States.
Martinez was convicted of trafficking marijuana in violation
of O.C.G.A. § 16-13-31. After her release, she was charged as re-
movable for committing a drug-trafficking aggravated felony in vi-
olation of the Immigration and Nationality Act § 237(a)(2)(A)(iii), 8
U.S.C. § 1227(a)(2)(A)(iii), and for having been convicted of a con-
trolled-substance offense in violation of INA § 237(a)(2)(B)(i), 8
U.S.C. § 1227(a)(2)(B)(i). Martinez applied for cancellation of re-
moval arguing that her conviction was not an aggravated felony
drug trafficking offense. An immigration judge denied her applica-
tion and in 2016 the BIA affirmed on appeal.
Martinez subsequently filed a motion to reopen her removal
proceeding based on what she contended was an intervening
change in law. The BIA denied her motion in 2022 and she peti-
tioned this Court for review.
In her petition, Martinez asserts that her Georgia conviction
for drug trafficking under O.C.G.A. § 16-13-31(c) does not categor-
ically qualify as an aggravated felony that would make her ineligi-
ble for cancellation of removal under the INA. Additionally, she
contends that the BIA abused its discretion in denying her motion
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22-13466 Opinion of the Court 3
to reopen by disregarding this Court’s decision in Jones v. U.S. At-
torney General, 742 F. App’x 491 (11th Cir. 2018) (unpublished), and
in failing to acknowledge Cintron v. U.S. Attorney General, 882 F.3d
1380 (11th Cir. 2018), and Francisco v. U.S. Attorney General, 884 F.3d
1120 (11th Cir. 2018), as intervening changes in law.
After careful review of Martinez’s petition, we dismiss it in
part and grant it in part.1
I
A petition for review must be filed within 30 days of the
BIA’s decision. INA § 242(b)(1), 8 U.S.C. § 1252(b)(1). We lack ju-
risdiction to review a final order of removal if the petition is not
filed within the deadline because “the statutory limit for filing a pe-
tition for review in an immigration proceeding is mandatory and
jurisdictional, [and] is not subject to equitable tolling.” Dakane v.
U.S. Att’y Gen., 399 F.3d 1269, 1272 n.3 (11th Cir. 2005) (internal
quotation marks omitted).
1 We review de novo our jurisdiction to review a petition for review of a BIA
decision. Rendon v. U.S. Att’y Gen., 972 F.3d 1252, 1256 (11th Cir. 2020). We
review legal issues de novo, including whether the BIA afforded a petition rea-
soned consideration. Ali v. U.S. Att’y Gen., 931 F.3d 1327, 1333 (11th Cir. 2019).
We review the BIA’s denial of a motion to reopen for an abuse of dis-
cretion. Flores-Panameno v. U.S. Att’y Gen., 913 F.3d 1036, 1040 (11th Cir. 2019).
Our review “is limited to determining whether there has been an exercise of
administrative discretion and whether the matter of exercise has been arbi-
trary or capricious.” Id. (internal quotation marks omitted).
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4 Opinion of the Court 22-13466
It appears that Martinez, at least in part, asks us to review
the BIA’s 2016 order holding that she was ineligible for cancellation
of removal because her Georgia conviction for marijuana traffick-
ing was an aggravated felony. To the extent that she disputes the
BIA’s 2016 decision, we lack jurisdiction because her current peti-
tion requests review only of the BIA’s 2022 decision denying her
motion to reopen, and she did not timely file a petition for review
from the BIA’s 2016 decision. Dakane, 339 F.3d at 1272 n.3. Ac-
cordingly, we dismiss the petition to the extent that it raises chal-
lenges to the BIA’s 2016 decision.
II
“A petitioner may file one, and only one motion for reopen-
ing of an order of removal.” Bing Quan Lin v. U.S. Att’y Gen., 881
F.3d 860, 872 (11th Cir. 2018) (citing INA § 240(c)(7)(A), 8 U.S.C.
§ 1229a(c)(7)(A)). The BIA may deny a motion to reopen based on
at least one of three independent grounds: “1) failure to establish a
prima facie case; 2) failure to introduce evidence that was material
and previously unavailable; and 3) a determination that despite the
alien’s statutory eligibility for relief, he or she is not entitled to a
favorable exercise of discretion.” Flores-Panameno v. U.S. Att’y Gen.,
913 F.3d 1036, 1040 (11th Cir. 2019) (internal quotation marks omit-
ted).
“To enable our review, the Board must give reasoned con-
sideration to an applicant’s claims and make adequate findings.”
Ali v. U.S. Att’y Gen., 931 F.3d 1327, 1333 (11th Cir. 2019) (internal
quotation marks omitted). The BIA fails to give reasoned
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22-13466 Opinion of the Court 5
consideration to a claim when it “misstates the contents of the rec-
ord, fails to adequately explain its rejection of logical conclusions,
or provides justifications for its decision which are unreasonable
and which do not respond to any arguments in the record.” Bing
Quan Lin, 881 F.3d at 874 (internal quotation marks omitted). In
conducting a reasoned-consideration examination, we determine
whether the BIA “has considered the issues raised and announced
its decision in terms sufficient to enable a reviewing court to per-
ceive that it has heard and thought and not merely reacted.” Id.
We have held that although we review legal issues de novo, “we
are sometimes prevented from performing that review in the first
place” when the BIA fails to provide reasoned consideration. Ali,
931 F.3d at 1333. In those cases, we will “hold that the decision is
incapable of review and thus [will] not proceed to analyze the
Board’s legal or factual conclusions.” Id.
In her motion to reopen, Martinez relied on this Court’s un-
published opinion Jones v. U.S. Attorney General, 742 F. App’x 491
(11th Cir. 2018), as well as two of this Court’s published decisions,
Cintron v. U.S. Attorney General, 882 F.3d 1380 (11th Cir. 2018), and
Francisco v. U.S. Attorney General, 884 F.3d 1120 (11th Cir. 2018). In
its decision, the BIA stated it was “not persuaded” that Jones was
intervening case law warranting reopening because the Court
“specified that its decision was based on the particular record and
argument before it, and it did not identify the statute at issue.” Ad-
ditionally, the BIA recognized that Jones was unpublished and, thus,
not binding precedent. The BIA decision didn’t address the two
binding Eleventh Circuit cases cited in Martinez’s motion.
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6 Opinion of the Court 22-13466
The BIA did not abuse its discretion in concluding that
Jones—as an unpublished, nonbinding decision—didn’t alone war-
rant reopening. However, the BIA failed to provide reasoned con-
sideration to Martinez’s argument that Jones, in combination with
this Court’s published, binding precedent in Cintron and Francisco,
warranted reopening of her removal proceedings.2 We aren’t able
to engage in meaningful appellate review because the BIA claimed
that there were no published decisions on point without explaining
why Cintron and Francisco—which are both published and address
substantially similar statutory language to the statute here—did
not support Martinez’s argument that reopening was warranted
because of a change in law.3 Accordingly, we grant the petition as
2 Although Martinez did not explicitly raise a reasoned-consideration argu-
ment, her arguments that the BIA improperly required a published decision
on the exact statute at issue in her matter and failed to analyze the relevant
published decisions in Cintron and Francisco are effectively “arguments clothed
in reasoned consideration garb.” Indrawati v. U.S. Att’y Gen., 779 F.3d 1284,
1302 (11th Cir. 2015) (internal quotations omitted).
3 The statute under which Martinez was convicted provides:
Except as authorized by this article, any person who sells, man-
ufactures, grows, delivers, brings into this state, or has posses-
sion of a quantity of marijuana exceeding ten pounds commits
the offense of trafficking in marijuana and, upon conviction
thereof, shall be punished as follows . . .
O.C.G.A. § 16-13-31(c).
The statue at issue in Cintron:
Any person who knowingly sells, purchases, manufactures, de-
livers, or brings into this state, or who is knowingly in actual
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22-13466 Opinion of the Court 7
to the BIA’s 2022 order, vacate the decision, and remand to the BIA
for further consideration.
* * *
In sum, we hold that we do not have jurisdiction to review
the BIA’s 2016 decision and that the BIA failed to provide rea-
soned consideration to Martinez’s arguments raised in her 2018
motion to reopen.
or constructive possession of, 4 grams or more of any mor-
phine, opium, oxycodone, hydrocodone, hydromorphone, or
any salt, derivative, isomer, or salt of an isomer thereof, includ-
ing heroin, as described in s. 893.03(1)(b), (2)(a), (3)(c)3., or
(3)(c)4., or 4 grams or more of any mixture containing any
such substance, but less than 30 kilograms of such substance
or mixture, commits a felony of the first degree, which felony
shall be known as “trafficking in illegal drugs,” punishable as
provided in s. 775.082, s. 775.083, or s. 775.084.
Fla. Stat. § 893.135(1)(c).
The statue at issue in Francisco:
Any person who knowingly sells, purchases, manufactures, de-
livers, or brings into this state, or who is knowingly in actual
or constructive possession of, 28 grams or more of cocaine, as
described in s. 893.03(2)(a) 4., or of any mixture containing co-
caine, but less than 150 kilograms of cocaine or any such mix-
ture, commits a felony of the first degree, which felony shall
be known as “trafficking in cocaine,” punishable as provided in
s. 775.082, s. 775.083, or s. 775.084.
Fla. Stat. § 893.135(1)(b).
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8 Opinion of the Court 22-13466
PETITION DISMISSED IN PART AND GRANTED IN
PART.
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