Case: 17-14057 Date Filed: 08/09/2018 Page: 1 of 6 [DO NOT PUBLISH] IN THE UNITED STATES COURT OF APPEALS FOR THE ELEVENTH CIRCUIT ________________________ No. 17-14057 Non-Argument Calendar ________________________ Agency No. A024-677-430 ANTONIO NOVOA-CARBALLO, Petitioner, versus U.S. ATTORNEY GENERAL, Respondent. ________________________ Petition for Review of a Decision of the Board of Immigration Appeals ________________________ (August 9, 2018) Before MARTIN, HULL, and JULIE CARNES, Circuit Judges. PER CURIAM: Antonio Novoa-Carballo asks this Court to review the denial of his motion to sua sponte reopen his removal proceedings by the Board of Immigration Case: 17-14057 Date Filed: 08/09/2018 Page: 2 of 6 Appeals. After careful consideration, we dismiss Novoa-Carballo’s petition for lack of jurisdiction. I. Novoa-Carballo is a Cuban citizen. He entered the United States in 1980 and became a lawful permanent resident in 1983. In 1998 he was convicted of attempted trafficking in cocaine under Florida Statute § 893.135(1)(b). 1 The following year the Department of Homeland Security began removal proceedings against him. The Notice to Appear listed Novoa-Carballo’s Florida conviction and charged him as removable based on his conviction of an aggravated felony under 8 U.S.C. § 1227(a)(2)(A)(iii) or his conviction of an offense relating to a controlled substance under 8 U.S.C. § 1227(a)(2)(B)(i). Novoa-Carballo admitted his Florida conviction and an immigration judge (“IJ”) sustained both charges of removability. The IJ ordered his removal to Cuba on April 4, 2002. He did not appeal. Nearly fifteen years later, on January 17, 2017, Novoa-Carballo filed a motion to reopen the removal proceedings. He claimed that since his removal order was entered, intervening Supreme Court decisions showed that his offense no longer qualified as a basis for his removal. These decisions were Moncrieffe v. Holder, 569 U.S. 184, 133 S. Ct. 1678 (2013); Descamps v. United States, 570 1 The statute states: “Any person who knowingly sells, purchases, manufactures, delivers, or brings into this state, or who is knowingly in actual or constructive possession of, 28 grams or more of cocaine . . . commits a felony of the first degree, which felony shall be known as ‘trafficking in cocaine.’” Fla. Stat. § 893.135(1)(b). 2 Case: 17-14057 Date Filed: 08/09/2018 Page: 3 of 6 U.S. 254, 133 S. Ct. 2276 (2013); and Mathis v. United States, 579 U.S. ___, 136 S. Ct. 2243 (2016). The IJ denied the motion to reopen. He determined that Novoa-Carballo’s motion was untimely because it was filed outside the 90-day statutory period for filing motions to reopen. The IJ decided equitable tolling of the 90-day deadline was not warranted because Novoa-Carballo had not shown he diligently pursued his rights for the past fourteen years or that the case involved “extraordinary circumstances.” The IJ also declined to exercise his authority to sua sponte reopen the proceedings because there had been a fundamental change in law. Specifically, the IJ determined that Novoa-Carballo’s Florida conviction still “categorically constitutes an aggravated felony” and thus he “remains properly removable.” Novoa-Carballo appealed to the Board of Immigration Appeals (“BIA”). He argued the IJ ...
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