Case: 19-12178 Date Filed: 01/28/2020 Page: 1 of 4 [DO NOT PUBLISH] IN THE UNITED STATES COURT OF APPEALS FOR THE ELEVENTH CIRCUIT ________________________ No. 19-12178 Non-Argument Calendar ________________________ Agency No. A089-828-905 JEAN CARLO ESPEJO-DAVILA, Petitioner, versus U.S. ATTORNEY GENERAL, Respondent. ________________________ Petition for Review of a Decision of the Board of Immigration Appeals ________________________ (January 28, 2020) Before GRANT, LUCK, and ANDERSON, Circuit Judges. PER CURIAM: Case: 19-12178 Date Filed: 01/28/2020 Page: 2 of 4 Jean Espejo-Davila, a native and citizen of Peru, petitions us to review the Board of Immigration’s (“BIA”) order denying his untimely and number-barred motion to reopen his removal proceedings. Espejo-Davila timely filed his first motion to reopen in April 2015, which the BIA denied. In the instant motion to reopen, Espejo-Davila argued that Pereira v. Sessions, 138 S. Ct. 2105 (2018), was a fundamental change in law that warranted a sua sponte reopening of his removal proceedings. The BIA denied Espejo-Davila’s instant motion to reopen, finding that Pereira did not provide a basis for sua sponte reopening his case. We review the BIA’s denial of a motion to reopen for an abuse of discretion. Al Najjar v. Ashcroft, 257 F.3d 1262, 1302 (11th Cir. 2001). Under this deferential standard of review, we examine whether the discretion exercised was arbitrary or capricious. Zhang v. U.S. Att’y Gen., 572 F.3d 1316, 1319 (11th Cir. 2009). However, we are obligated to review the existence of subject matter jurisdiction sua sponte where it may be lacking. Cadet v. Bulger, 377 F.3d 1173, 1179 (11th Cir. 2004). Such review is conducted de novo. Gonzalez-Oropeza v. U.S. Att’y Gen., 321 F.3d 1331, 1332 (11th Cir. 2003). Although the BIA may sua sponte reopen removal proceedings at any time, we do not have jurisdiction to review the BIA’s decision not to reopen an alien’s case sua sponte. Lenis v. U.S. Att’y Gen., 525 F.3d 1291, 1294 (11th Cir. 2008); 8 C.F.R. § 1003.2(a). However, if a petitioner alleges “constitutional claims 2 Case: 19-12178 Date Filed: 01/28/2020 Page: 3 of 4 related to the BIA’s decision not to exercise its sua sponte power to reopen,” then we “may have jurisdiction” over those claims. Lenis, 525 F.3d at 1294 n.7. A petitioner must allege at least a colorable constitutional violation for us to retain jurisdiction pursuant to 8 U.S.C. § 1252(a)(2)(D). Arias v. U.S. Att’y Gen., 482 F.3d 1281, 1284 (11th Cir. 2007). A party may file only one motion to reopen his removal proceedings, and that motion “shall state the new facts that will be proven at a hearing to be held if the motion is granted, and shall be supported by affidavits or other evidentiary material.” INA § 240(c)(7)(A), (B), 8 U.S.C. § 1229a(c)(7)(A), (B). Generally, a “motion to reopen shall be filed within 90 days of the date of entry of a final administrative order of removal,” or before September 30, 1996, whichever is later, subject to certain exceptions. INA § 240(c)(7)(C)(i), 8 U.S.C. § 1229a(c)(7)(C)(i). The time and numerical ...
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