           Case: 16-16134   Date Filed: 07/13/2017   Page: 1 of 6


                                                         [DO NOT PUBLISH]



            IN THE UNITED STATES COURT OF APPEALS

                    FOR THE ELEVENTH CIRCUIT
                      ________________________

                            No. 16-16134
                        Non-Argument Calendar
                      ________________________

                       Agency No. A093-381-064



HAYDEE RODRIGUEZ VEGA,

                                                                      Petitioner,

                               versus

U.S. ATTORNEY GENERAL,

                                                                    Respondent.

                      ________________________

                 Petition for Review of a Decision of the
                      Board of Immigration Appeals
                       ________________________

                             (July 13, 2017)

Before MARCUS, WILLIAM PRYOR and JILL PRYOR, Circuit Judges.

PER CURIAM:
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      Haydee Vega, a native and citizen of Costa Rica who is proceeding pro se,

seeks review of an order of the Board of Immigration Appeals (“BIA”) denying as

untimely her motion to reopen her removal proceedings and declining to reopen

those proceedings sua sponte. In her petition for review, Vega argues that this

Court has jurisdiction to review the BIA’s decision not to reopen her proceedings

sua sponte. She also argues that the non-reviewable nature of the BIA’s

discretionary authority regarding whether to reopen a case could lead to

arbitrariness and unfairness in violation of the separation of powers doctrine and

her due process rights and that this Court retains jurisdiction to consider these

constitutional claims. For the reasons that follow, we dismiss Vega’s petition.

                                          I.

      Vega entered the United States in 1998 as a nonimmigrant visitor with

authorization to remain in the country temporarily. She overstayed her temporary

authorization, so the Department of Homeland Security served her with a notice to

appear, charging her as removable. Vega requested that her removal be cancelled

under the Immigration and Nationality Act (“INA”), 8 U.S.C. § 1229b(b)(1)(D),

because her removal would result in exceptional and extremely unusual hardship to

her five year old child, who is a United States citizen.

      After a hearing, an immigration judge (“IJ”) denied Vega’s request for

cancellation of removal, finding that although her son would experience some


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hardship, it would not rise to the level of hardship required for cancellation. Vega

appealed the IJ’s decision to the BIA, which found no error and dismissed the

appeal. The BIA also denied Vega’s motion to reconsider.

      Vega petitioned this Court for review of the BIA’s denial of her motion to

reconsider, but we dismissed her petition. See Vega v. U.S. Att’y Gen., No. 14-

14466, slip op. (July 31, 2015). Vega then moved the BIA to reopen her removal

proceedings. She acknowledged that her motion to reopen was filed outside the

90-day time limit, but asserted that the BIA could sua sponte reopen or reconsider

any of its decisions. In support of her motion, Vega asserted that she now was

eligible for Immediate Relative Status because one of her sons had become a

naturalized United States citizen and had filed a petition on her behalf. The BIA

denied Vega’s motion as time-barred. In so doing, the Board noted that Vega had

not demonstrated circumstances that would warrant sua sponte reopening of the

proceedings.

      Vega petitioned this Court for review of the BIA’s denial of her motion to

reopen.

                                         II.

      We review de novo our subject matter jurisdiction. Butka v. U.S. Att’y Gen.,

827 F.3d 1278, 1282 n.4 (11th Cir. 2016). “There is no statutory provision for

reopening of a deportation proceeding, and the authority for such motions derives


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solely from regulations promulgated by the Attorney General.” INS v. Doherty,

502 U.S. 314, 322 (1992). Under those regulations, a “motion to reopen

proceedings shall not be granted unless it appears to the Board that evidence

sought to be offered is material and was not available and could not have been

discovered or presented at the former hearing.” 8 C.F.R. § 1003.2(c)(1).

Additionally, the BIA may “at any time reopen or reconsider on its own motion

any case in which it has rendered a decision.” Id. § 1003.2(a).

      The BIA is not required to reopen an applicant’s removal proceedings;

rather, its authority to reopen proceedings is discretionary. See Najjar v. Ashcroft,

257 F.3d 1262, 1301 (11th Cir. 2001). We review the BIA’s application of the

standard set forth in § 1003.2(c) under “a very deferential abuse of discretion

standard . . . regardless of the underlying basis of the alien’s request for relief.” Id.

at 1302 (internal quotation marks omitted). Conversely, we lack jurisdiction to

hear an appeal challenging the BIA’s refusal to exercise its authority to reopen

proceedings under § 1003.2(a) sua sponte. Butka, 827 F.3d at 1286 (citing Lenis v.

U.S. Att’y Gen., 525 F.3d 1291 (11th Cir. 2008)).

      We retain jurisdiction to review constitutional questions arising out of

removal proceedings, so long as those questions are colorable. See Arias v. U.S.

Att’y Gen., 482 F.3d 1281, 1284 (11th Cir. 2007).




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                                          III.

      On appeal, Vega does not dispute that her motion to reopen was untimely

because it was filed outside the 90-day time limit and does not fall within one of

the exceptions to that limit. See 8 U.S.C. § 1229a(c)(7)(A), (C)(i)-(iv); 8 C.F.R.

§ 1003.2(c)(2), (3). Rather, she contends that the BIA erred in declining to reopen

her case sua sponte. Vega asks this Court to “review sua sponte motions to reopen

for the existence of exceptional circumstances under an abuse of discretion

standard.” Petitioner’s Br. at 5. But our precedent is clear that we lack jurisdiction

to hear an appeal challenging the BIA’s refusal to use its discretionary authority to

reopen a removal proceeding. Butka, 827 F.3d at 1286. We are bound to follow

that precedent unless and until it is overruled by this Court sitting en banc or the

Supreme Court. See United States v. Archer, 531 F.3d 1347, 1352 (11th Cir.

2008).

      Vega is correct that we retain jurisdiction to review colorable constitutional

questions arising out of removal proceedings involving the denial of discretionary

relief. See Arias, 482 F.3d at 1284. She asserts that for this Court to decline

review of the BIA’s refusal to reopen her case sua sponte violates the Due Process

Clause and the separation of powers between the executive branch and the

judiciary. But these claims are not colorable. This Court has held that a petitioner


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cannot prevail on a due process claim when it stems from the denial of a purely

discretionary form of relief because the petitioner has no constitutionally protected

interest in such relief. See Scheerer v. U.S. Att’y Gen., 513 F.3d 1244, 1253 (11th

Cir. 2008) (discussing denial of one form of discretionary relief, adjustment of

status); Najjar, 257 F.3d at 1296 n.27, 1297 (noting that cancellation of removal is

discretionary).

       As to her separation of powers argument, we reject Vega’s contention that

the BIA’s discretionary procedures restrict judicial review beyond what Congress

contemplated. The BIA’s procedures—which are promulgated by the Attorney

General, not Congress—provide protection for individuals seeking cancellation of

removal beyond what Congress provided in the INA. Because Vega’s

constitutional argument cannot be said to be colorable, we are without jurisdiction

to entertain it.

                                           IV.

       For these reasons, we dismiss Vega’s petition for lack of jurisdiction.

       DISMISSED.




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