Case: 19-12607 Date Filed: 03/09/2020 Page: 1 of 4 [DO NOT PUBLISH] IN THE UNITED STATES COURT OF APPEALS FOR THE ELEVENTH CIRCUIT ________________________ No. 19-12607 Non-Argument Calendar ________________________ Agency No. A088-898-112 MARCO PLAZA-HERNANDEZ, Petitioner, versus U.S. ATTORNEY GENERAL, Respondent. ________________________ Petition for Review of a Decision of the Board of Immigration Appeals ________________________ (March 9, 2020) Before WILSON, JORDAN, and ANDERSON, Circuit Judges. PER CURIAM: Case: 19-12607 Date Filed: 03/09/2020 Page: 2 of 4 Marco Plaza-Hernandez seeks review of the final order of the Board of Immigration Appeals (“BIA”) affirming the Immigration Judge’s (“IJ”) denial of his motion to sua sponte reopen his removal proceedings. On appeal, he argues that the BIA failed to consider the facts surrounding his failure to appear at his initial hearing, misconstrued the circumstances that made him eligible for a new type of relief from removal, and misapplied its precedent regarding what constitutes extraordinary circumstances warranting reopening. The government responds that we lack jurisdiction to review the BIA’s refusal to exercise its authority to sua sponte reopen removal proceedings. Plaza-Hernandez replies that (1) we have jurisdiction under the Administrative Procedures Act (“APA”) to set aside arbitrary and capricious agency decisions and (2) he was denied due process because of the BIA’s misapplication of its precedent. We review our subject-matter jurisdiction de novo. Amaya-Artunduaga v. U.S. Att’y Gen., 463 F.3d 1247, 1250 (11th Cir. 2006). Pursuant to § 242(a)(1) of the Immigration and Nationality Act (“INA”), we may review final orders of removal. INA § 242(a)(1), 8 U.S.C. § 1252(a)(1). However, this section does not apply to decisions committed by statute to the discretion of the Attorney General or Secretary of Homeland Security. INA § 242(a)(2)(B), 8 U.S.C. § 1252(a)(2)(B). Similarly, though ordinarily the APA provides that a reviewing court may set aside agency actions that are arbitrary or capricious, this judicial-review provision does 2 Case: 19-12607 Date Filed: 03/09/2020 Page: 3 of 4 not apply where an agency’s action is committed to its discretion by law. 5 U.S.C. §§ 701(a)(2), 706(2)(A). We lack jurisdiction to review the BIA’s refusal to exercise its authority to sua sponte reopen proceedings because it is committed to the BIA’s discretion by law. Lenis v. U.S. Att’y Gen., 525 F.3d 1291, 1293–94 (11th Cir. 2008) (discussing § 701(a)(2)); 8 C.F.R. § 1003.2(a). We have suggested that we may have jurisdiction to consider constitutional claims relating to the BIA’s refusal to exercise its discretionary authority to sua sponte reopen proceedings, Lenis, 525 F.3d at 1294 n.7, but our jurisdiction does not extend to our review of solely legal claims, Butka v. U.S. Att’y Gen., 827 F.3d 1278, 1285–86 (11th Cir. 2016). We lack jurisdiction to consider claims that were not raised before the BIA. Amaya-Artunduaga, 463 F.3d at 1250. A due process claim that a petitioner was denied a full and a fair hearing “is precisely the kind of procedural error which requires exhaustion.” Id. at 1251. And a petitioner abandons an argument where he raises it for the first ...
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