BUTERA v. ATTORNEY GENERAL (2018)

United States Court of Appeals, Eleventh Circuit.

Mutijima Christine BUTERA, Petitioner, v. U.S. ATTORNEY GENERAL, Respondent.

No. 17-15660

Decided: September 26, 2018

Before WILLIAM PRYOR, NEWSOM, and ANDERSON, Circuit Judges. Ali Kamarei, Esquire, Inhouse Co, San Jose, CA, Paul R. Norman, James E. Bartzen, Patrick Berry, Boardman & Clark LLP, Madison, WI, for Plaintiff-Appellant Robert Davies, Attorney, Gregory Nelson, Assistant Counsel, Mary Alma Stewart, Donahue Davies LLP, Folsom, CA, Colin R. Kass, Esquire, Attorney, Proskauer Rose LLP, Washington, DC, David A. Munkittrick, Attorney, Proskauer Rose LLP, New York, NY, for Defendant-Appellee

Mutijima Christine Butera, a native and citizen of Rwanda, petitions for review of the Board of Immigration Appeals’s order denying her motion to sua sponte reopen her removal proceedings. In her petition, Butera asserts (1) that the BIA addressed only its statutory authority to reopen and did not mention the phrase “sua sponte” in its decision, thereby applying the wrong law and depriving her of an opportunity to be heard; (2) that the BIA erred in concluding that she failed to prove either of her two ineffective-assistance-of-counsel claims; and (3) that she was eligible for asylum, and thus not subject to the otherwise applicable deadline within which she would have had to file her motion to reopen. See 8 U.S.C. § 1229a(c)(7)(C)(i)–(ii). After careful review, we dismiss Butera’s petition for lack of jurisdiction.¹

Under the Immigration and Nationality Act, an alien may file one statutory motion to reopen, which must be filed within 90 days of the final order of removal. INA § 240(c)(7), 8 U.S.C. § 1229a(c)(7). In addition to the statutory motion to reopen, the BIA has the authority to reopen removal proceedings sua sponte at any time. 8 C.F.R. § 1003.2(a).

We lack jurisdiction to review the BIA’s denial of a motion to reopen based on its sua sponte authority. Lenis v. U.S. Att’y Gen., 525 F.3d 1291, 1292–94 (11th Cir. 2008); see also Butka v. U.S. Att’y Gen., 827 F.3d 1278, 1285–86 (11th Cir. 2016). Although Butera argues that the BIA addressed only its statutory authority to reopen removal proceedings, and thus applied the incorrect law for sua sponte motions to reopen under 8 C.F.R. § 1003.2(a), the BIA’s decision shows that it fully considered Butera’s arguments in favor of sua sponte reopening.² Therefore, we lack jurisdiction to review the BIA’s decision. See Lenis, 525 F.3d at 1292–94.

Additionally, although Butera references “due process” once in making her arguments—and while it is true that “we may retain jurisdiction where constitutional claims are raised relating to the BIA’s refusal to reopen sua sponte,” Bing Quan Lin v. U.S. Att’y Gen., 881 F.3d 860, 871 (11th Cir. 2018)—a petitioner “may not create the jurisdiction that Congress chose to remove simply by cloaking an abuse of discretion argument in constitutional garb,” Arias v. U.S. Att’y Gen., 482 F.3d 1281, 1284 (11th Cir. 2007) (citation omitted). So to the extent that Butera attempts to make a constitutional claim here, we conclude—as we did in Arias—that her claim is really an abuse-of-discretion argument “couched in constitutional language,” and as such, we likewise lack jurisdiction to review it. Id.

Accordingly, we lack jurisdiction to consider Butera’s petition for review.

PETITION DISMISSED.

FOOTNOTES

1.   We review de novo our own subject matter jurisdiction. Gonzalez-Oropeza v. U.S. Att’y Gen., 321 F.3d 1331, 1332 (11th Cir. 2003).

2.   Butera notes that the BIA never mentioned the phrase “sua sponte” in its order and therefore must have ignored or misconstrued her arguments. Especially given that Butera requested only sua sponte reopening, we conclude that the BIA’s decision is most fairly read to have understood and ruled on that request. See, e.g., In re Mutijima Christine Butera, A095220841 at 4 (B.I.A. Nov. 22, 2017).

PER CURIAM: