Anzardo v. U.S. Attorney Gen.
| Decision Date | 05 November 2020 |
| Docket Number | No. 17-15441,No. 18-12267,No. 19-12856,17-15441,18-12267,19-12856 |
| Parties | NELSON ZALDIVAR ANZARDO, Petitioner, v. U.S. ATTORNEY GENERAL, Respondent. |
| Court | U.S. Court of Appeals — Eleventh Circuit |
[DO NOT PUBLISH]
Non-Argument Calendar
Petitions for Review of a Decision of the Board of Immigration Appeals
Before JILL PRYOR, BRASHER, and BLACK, Circuit Judges.
Nelson Zaldivar Anzardo, a native and citizen of Cuba, seeks review of three Board of Immigration Appeals (BIA) decisions from November 2017, May 2018, and June 2019, denying his motions to reopen his removal proceedings. Zaldivar asserts the BIA erred in declining to reopen his proceedings under statutory authority and in declining to reopen his proceedings sua sponte. Zaldivar raises numerous issues on appeal, which we address in turn. After review, we dismiss his petitions in part, and deny the petitions in part.
Zaldivar contends we may review the BIA's decision not to exercise its sua sponte authority and, thus, we may reach the question of whether Lopez v. Gonzalez, 549 U.S. 47 (2006)—under which he asserts his 2003 convictions for possession of MDMA, possession of cocaine, and possession of cannabis in violation of Florida Statutes §§ 893.03(1), 893.03(2), and 893.13(6) would no longer qualify as aggravated felonies—constitutes an "exceptional circumstance" justifying the BIA's exercise of its sua sponte authority to reopen.
The BIA has the authority to sua sponte reopen or reconsider removal proceedings at any time, including upon motion. 8 C.F.R. § 1003.2(a). The Immigration Judge (IJ) and BIA have the discretion to deny a motion to reopen, even if the moving party has met its prima facie burden. 8 C.F.R. §§ 1003.2(a), 1003.23(b)(3). The BIA may sua sponte reopen any case in which it has rendered a decision. Id. § 1003.2(a). The BIA only exercises its authority to sua sponte reopen removal proceedings in "exceptional situations." In re G-D-, 22 I. & N. Dec. 1132, 1133-34 (BIA 1999).
There is no express statutory grant of authority to reopen cases sua sponte. Lenis v. U.S. Att'y Gen., 525 F.3d 1291, 1293 (11th Cir. 2008). Rather, the authority derives from 8 U.S.C. § 1103(g)(2), which grants general authority to the Attorney General over immigration matters. Id. In Lenis, we concluded we lacked jurisdiction to review the BIA's decision not to exercise its sua sponte authority to reopen or reconsider a case under 8 C.F.R. § 1003.2(a) because the regulation did not provide any "meaningful standard against which to judge the agency's exercise of discretion." Id. at 1292-94. Lenis also suggested an IJ's decision denying sua sponte reopening would be unreviewable for the same reasons. See id. at 1294 (). We noted an appellate court might have jurisdictionover constitutional claims related to the BIA's decision not to exercise its sua sponte authority, but we declined to address that question because the petitioner had not raised a constitutional claim. Id. at 1294 n.7. However, in Butka, we reaffirmed our holding in Lenis and stated the jurisdiction-preserving section of 8 U.S.C. § 1252(a)(2)(D), for questions of law or constitutional claims, "has no impact on our jurisdiction to review motions for sua sponte reopening." Butka v. U.S. Att'y Gen., 827 F.3d 1278, 1286 n.7 (11th Cir. 2016). We reasoned § 1252(a)(2)(D) created an exception to the jurisdiction-stripping provisions contained only in the Immigration and Nationality Act (INA), whereas our jurisdiction over sua sponte reopening is limited instead by the Administrative Procedure Act. Id.
We lack jurisdiction to review Zaldivar's arguments regarding the BIA's sua sponte authority to reopen his case. See Lenis, 525 F.3d at 1292-94. While Lenis indicated this Court might maintain jurisdiction over constitutional claims relating to the decision not to reopen sua sponte, Zaldivar has not raised any specific constitutional claims that relate to the denial of sua sponte reopening. Id. at 1294 n.7. Instead, Zaldivar asserts the BIA erred in finding his case lacked "exceptional circumstances" because there was a significant development in the law, which he argues is "incontrovertible" evidence of an exceptional circumstance. He further argues his case is distinct from that in Lenis or Butka, because he is challenging"the very concept that regulation-made authority, in which the executive branch creates power for itself and bars judicial review may withstand constitutional scrutiny." These arguments do not assert a constitutional challenge to the way in which the BIA made its decision, instead, they assert legal error in the BIA's analysis of "exceptional circumstances." His arguments do not speak to the BIA running afoul of his constitutional rights, instead, they challenge this Court's precedent holding that such decisions are unreviewable. Therefore, we lack jurisdiction to review the BIA's exercise of its sua sponte authority.
Because Zaldivar was found removable under two grounds listed in the criminal alien bar, this Court is obligated to consider whether it has jurisdiction to review the challenges he raises to the BIA's denial of reopening under its statutory authority. 8 U.S.C. § 1252(a)(2)(C) (); Patel v. U.S. Att'y Gen., 971 F.3d 1258, 1272 & n.17 (11th Cir. 2020) (en banc) (). Notwithstanding the criminal alienbar, we have jurisdiction to review any constitutional claims or questions of law presented in a petition for review. 8 U.S.C. § 1252(a)(2)(D).
We have jurisdiction to review Zaldivar's challenges to the BIA's denial of his motions to reopen under statutory authority. First, Zaldivar's motions to reopen challenged both his criminal grounds of removability, and thus, this Court may review the denial of those motions to determine whether the statutory conditions for limiting judicial review exist. See Keungne v. U.S. Att'y Gen., 561 F.3d 1281, 1283 (11th Cir. 2009) . Second, this Court has jurisdiction to review questions of law, including the application of undisputed facts to a legal standard, and the issues Zaldivar raises on appeal—equitable tolling, whether his convictions qualified as controlled substance offenses, and the legal effect of his defective notice to appear—all concern questions of law. 8 U.S.C. § 1252(a)(2)(D); see Guerrero-Lasprilla v. Barr, 140 S. Ct. 1062, 1067-68 (2020) (). Consequently, the criminal alien bar does not prevent this Court from considering Zaldivar's claims on appeal.
Zaldivar asserts that, in its 2019 order, the BIA erred in rejecting his argument that his 2003 convictions cannot constitute controlled substance offenses under Mathis v. United States, 136 S. Ct. 2243 (2016) and Moncrieffe v. Holder, 569 U.S. 184 (2013) because the Florida statutes did not require the state to prove the defendant knowingly possessed any illicit substance and presumed culpable mens rea.
The BIA must give reasoned consideration to an alien's claims and make adequate findings to permit our review. Ali v. U.S. Att'y Gen., 931 F.3d 1327, 1333 (11th Cir. 2019). A remand for lack of reasoned consideration is not a disagreement with the BIA's legal conclusions or factual findings, but a determination "that, given the facts and claims in the specific case before the [agency], the agency decision is so fundamentally incomplete that a review of legal and factual determinations would be quixotic." Id. (emphasis and quotations omitted). Reasoned consideration requires only that the BIA heard and thought about the case, rather than "merely react[ing]." Id. A failure of reasoned consideration results when the BIA decision, "read alongside the evidentiaryrecord, forces us to doubt whether we and the [BIA] are, in substance, looking at the same case." Id. at 1334.
The BIA failed to give reasoned consideration to Zaldivar's claim. See Bing Quan Lin v. U.S. Att'y Gen., 881 F.3d 860, 872 (11th Cir. 2018) (). Zaldivar argued to the BIA that he was not removable for having been convicted of a controlled substance offense because his offense lacked a mens rea element as to the illicit nature of the substances he possessed. The BIA rejected this argument by stating he remained removable under Matter of Navarro Guadarrama, 27 I. & N. Dec. 560 (BIA 2019). But, although Navarro Guadarrama addressed whether a conviction under Fla. Stat. § 893.13(6) is a controlled substance offense, it rejected a completely different argument for why such a conviction did not qualify; it had nothing whatsoever to do with the lack of a mens rea...
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