USCA11 Case: 17-15441 Date Filed: 11/05/2020 Page: 1 of 17 [DO NOT PUBLISH] IN THE UNITED STATES COURT OF APPEALS FOR THE ELEVENTH CIRCUIT ________________________ Nos. 17-15441, 18-12267, 19-12856 Non-Argument Calendar ________________________ Agency No. A018-796-466 NELSON ZALDIVAR ANZARDO, Petitioner, versus U.S. ATTORNEY GENERAL, Respondent. ________________________ Petitions for Review of a Decision of the Board of Immigration Appeals ________________________ (November 5, 2020) Before JILL PRYOR, BRASHER, and BLACK, Circuit Judges. PER CURIAM: USCA11 Case: 17-15441 Date Filed: 11/05/2020 Page: 2 of 17 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. I. DISCUSSION A. Jurisdiction1 1. Sua Sponte Reopening 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. 1 “We review subject matter jurisdiction de novo.” Martinez v. U.S. Att’y Gen., 446 F.3d 1219, 1221 (11th Cir. 2006) (quotations omitted). We must inquire into subject matter jurisdiction whenever it may be lacking. Chacon-Botero v. U.S. Att’y Gen., 427 F.3d 954, 956 (11th Cir. 2005). 2 USCA11 Case: 17-15441 Date Filed: 11/05/2020 Page: 3 of 17 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 ...
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