Agnaldo Alves v. U.S. Attorney General

Filing

Opinion issued by court as to Petitioner Agnaldo da Silva Alves. Decision: Dismissed. Opinion type: Non-Published. Opinion method: Per Curiam. Motion to dismiss appeal for lack of jurisdiction filed by Respondent U.S. Attorney General is GRANTED. [8025346-2]. The opinion is also available through the Court's Opinions page at this link http://www.ca11.uscourts.gov/opinions.

Case: 16-17754

Date Filed: 11/28/2017

Page: 1 of 3

[DO NOT PUBLISH]

IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
________________________
No. 16-17754
Non-Argument Calendar
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Agency No. A205-682-864
AGNALDO DA SILVA ALVES,
Petitioner,
versus
U.S. ATTORNEY GENERAL,
Respondent.
________________________
Petition for Review of a Decision of the
Board of Immigration Appeals
________________________
(November 28, 2017)
Before TJOFLAT, MARTIN, and JILL PRYOR, Circuit Judges.
PER CURIAM:
Agnaldo da Silva Alves, proceeding pro se, petitions for review of the Board
of Immigration Appeals’s (“BIA”) denial of his motion to reopen removal

Case: 16-17754

Date Filed: 11/28/2017

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proceedings under its sua sponte authority. Alves claims there was substantial
documentary evidence in the record regarding his son’s medical condition that
established the level of hardship necessary to cancel his removal. The government
has moved to dismiss the petition for lack of subject matter jurisdiction.
We review de novo whether we have subject matter jurisdiction. Chao Lin
v. U.S. Att’y Gen., 677 F.3d 1043, 1045 (11th Cir. 2012). The BIA has the
authority to reopen removal proceedings sua sponte at any time. 1 8 C.F.R.
§ 1003.2(a). We lack jurisdiction to review the denial of a motion to reopen based
solely on the BIA’s sua sponte authority. Lenis v. U.S. Att’y Gen., 525 F.3d 1291,
1292–93 (11th Cir. 2008).
In Lenis, we concluded that the BIA’s decision about whether to reopen
proceedings sua sponte was committed to agency discretion by law, and the
regulation authorizing sua sponte reopening lacked a meaningful standard against
which to judge the agency’s exercise of discretion. Id. at 1293–94. Accordingly,
we concluded that we lacked jurisdiction to review such decisions. Id. at 1294.
We noted, however, that we may have jurisdiction to review constitutional claims
related to the BIA’s exercise of its sua sponte authority. Id. at 1294 n.7.
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The BIA also has statutory authority to reopen proceedings, but is inapposite here. An
alien is permitted to file one motion to reopen removal proceedings, and that motion must be
filed within 90 days of the BIA’s final order of removal. 8 U.S.C. § 1229a(c)(7); 8 C.F.R.
§ 1003.2(c)(2). Here, Alves did not file his motion within 90 days of the final order of removal
and he presents no reason why the time limit should be excused. Therefore, only the BIA’s sua
sponte authority could apply.
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Case: 16-17754

Date Filed: 11/28/2017

Page: 3 of 3

A constitutional claim does not exist merely because a petitioner says it
does. For example, a petitioner cannot create jurisdiction by disguising an abuseof-discretion argument as a constitutional claim. Arias v. U.S. Att’y Gen., 482 F.3d
1281, 1284 (11th Cir. 2007). The failure to receive relief that is purely
discretionary in nature does not amount to a deprivation of a liberty interest and
cannot establish a due process violation. Scheerer v. U.S. Att’y Gen., 513 F.3d
1244, 1253 (11th Cir. 2008).
Such is the case here. Alves presents his claim as a due process violation,
but in reality he merely petitions this Court to reweigh the discretionary hardship
factors that the BIA already considered. Because there is no colorable
constitutional violation, we are bound by Lenis and may go no further. We lack
jurisdiction to entertain the petition and we grant the government’s motion to
dismiss for lack of subject matter jurisdiction.
MOTION GRANTED, PETITION DISMISSED.

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