                                                          [DO NOT PUBLISH]


             IN THE UNITED STATES COURT OF APPEALS
                                                                  FILED
                      FOR THE ELEVENTH CIRCUIT U.S. COURT OF APPEALS
                        ________________________ ELEVENTH CIRCUIT
                                                                MAY 2, 2006
                              No. 05-15644                    THOMAS K. KAHN
                          Non-Argument Calendar                   CLERK
                        ________________________

                           BIA No. A79-668-856

YVONNE NDUTA MAINA,


                                                          Petitioner,

                                   versus

U.S. ATTORNEY GENERAL,

                                                          Respondent.


                        ________________________

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

                                (May 2, 2006)

Before BIRCH, DUBINA and HULL, Circuit Judges.

PER CURIAM:

     Yvonne Nduta Maina appeals the order of the Board of Immigration Appeals
(“BIA”) dismissing her appeal of the denial by the immigration judge (“IJ”) of her

motion to reopen removal proceedings. As an initial matter, we lack jurisdiction

over Maina’s claim that the immigration judge violated her due process rights

because she failed to exhaust her administrative remedies by not appealing the

immigration judge’s initial order of voluntary departure. Furthermore, we find that

the BIA did not abuse its discretion in denying Maina’s motion to reopen.

Accordingly, the petition is DISMISSED IN PART and DENIED IN PART.

                                     I. BACKGROUND

       Maina, a native and citizen of Kenya, entered the United States in August

2000 as a non-immigrant visitor for pleasure with authorization to remain until

February 2001. She remained beyond her authorized date and, in December 2002,

the Immigration and Naturalization Service (“INS”)1 issued a notice to appear,

charging her with removability under the Immigration and Nationality Act

(“INA”), 8 U.S.C. § 1227(a)(1)(B). Maina’s removal hearing was set for 21

November 2003. In June 2003, Maina filed an application for asylum and

withholding of removal.




       1
        The Homeland Security Act (“HSA”), effective 25 November 2002, created the
Department of Homeland Security (“DHS”) and abolished the INS. Pub. L. No. 107-296, 116
Stat. 2135. The HSA transferred INS functions to the DHS. This case was initiated while the
INS was still in existence. This opinion, therefore, refers to the INS rather than the DHS as the
relevant agency.
                                                 2
       In early November 2003, Maina filed a “motion to adjourn and continue” the

hearing on the ground that she had married a lawful permanent resident who was

applying for naturalization. Administrative Record (“AR”) at 225. Maina asserted

that, if her husband were naturalized, she would be eligible for an adjustment of

status. In support of her motion, she submitted a copy of her husband’s

naturalization application. The marriage certificate, which Maina had submitted in

October 2003, indicated that she had married John Gacunu Waruhiu on 3 April

2003. Id. at 158.

       On 21 November 2003, the IJ continued Maina’s hearing until April 2004

and subsequently rescheduled it for 2 June 2004. At the rescheduled hearing, the

IJ granted Maina’s application for voluntary departure until 2 August 2004, with an

alternate order of removal to Kenya. See id. at 84.2 Both Maina and the INS

waived their rights to appeal. Id. On 2 August 2004, the final day of Maina’s

voluntary departure time period, she filed a motion to reopen the 2 June decision

and allow her to pursue an adjustment of status based on her marriage to a United

States citizen. She claimed that her husband was scheduled to become a United

States citizen on 13 August 2004 and that he would then file a “Petition for Alien

Relative” on her behalf. Id. at 48. In support of her motion, Maina again

       2
        The transcript of the removal hearing is not included in the record on appeal. However,
the essential facts of the hearing are not in dispute and are adequately set forth in the briefs. See
generally AR at 6-13, 14-20; Petitioner’s Br. at 4-5; Government’s Br. at 4.
                                                   3
submitted her marriage certificate and her husband’s naturalization application.

Maina also submitted (1) a copy of her husband’s completed “Petition for Alien

Relative,” (2) an apartment lease dated 29 April 2003 in both Maina and her

husband’s names, and (3) two utility bills, both in her name only. Id. at 72-80.

The IJ denied Maina’s motion to reopen stating: “[Maina] sought and was granted

voluntary departure and was to depart[] on August 2, 2004 but refused to do so.

[Maina] was further married during proceedings. Insufficient reasons to reopen

this proceeding.” Id. at 42.

       Maina appealed to the BIA, arguing in her brief that her motion to reopen

had been timely filed and that she had established the bona fides of her marriage

through her submission of copies of her husband’s Petition for Alien Relative and

the joint lease she held with her husband. Maina also asserted that, during her

hearing before the IJ, she had been subjected to an experimental INS pilot program

under which she had been given the option of taking a grant of voluntary departure

or proceeding with her asylum claim with the risk that, if she did not prevail on

that claim, she would be immediately imprisoned on a $50,000 bond.3 Maina



       3
        The government explained in its brief to the BIA that, during the time of Maina’s
removal hearing, the INS had been implementing an experimental program entitled “Operation
Compliance.” AR at 7. Aliens subjected to this program were informed at the beginning of their
removal proceedings that, if they failed on the merits of their claims, they would be taken into
custody immediately and the appropriate amount of bond, as determined on a case-by-case basis,
would be imposed. Id. The bond amount could reach a maximum of $50,000. Id.
                                                 4
contended that her Fifth Amendment due process rights had been violated when the

INS implemented the pilot program and applied it to Maina without any notice to

her that it was doing so. She argued that the IJ should have granted her motion to

continue the removal hearing to allow her an “opportunity to reflect upon the new

policy.”4 Id. at 19.

       The BIA dismissed Maina’s appeal, finding that Maina was not eligible for

an adjustment of status based on a marriage that had been entered into after the

commencement of removal proceedings. More specifically, the BIA found that,

although Maina’s burden was to present clear and convincing evidence of a strong

likelihood of a bona fide marriage, the record was insufficient to establish such

because the only supporting evidence was the apartment lease signed by both

Maina and her husband. Id. at 3. The BIA observed that the utility bills that Maina

had submitted did not even list Maina’s husband. Id. The BIA further found that

Maina, as an alien who had failed to depart following the grant of voluntary

departure, was statutorily barred from applying for an adjustment of status,

pursuant to 8 U.S.C. § 1229c(d)(1)(B). Id. Finally, the BIA refused to consider

Maina’s due process challenge to her removal hearing because she “did not appeal

the [IJ’s] decision at the hearing, and that order is now final.” Id.

       4
        On appeal before the BIA, Maina for the first time characterized her motion to reopen as
a “motion to reopen and/or continue proceedings.” AR at 36. The motion, as filed with the IJ,
was simply a motion to reopen removal proceedings. See id. at 48.
                                              5
      In her petition for review, Maina argues that (1) the INS and the IJ violated

her right to due process by applying an experimental pilot program during her

removal proceedings and (2) the BIA abused its discretion in dismissing her appeal

of the IJ’s denial of her motion to reopen.

                                  II. DISCUSSION

A. Violation of Due Process

      We are “obligated to inquire into subject-matter jurisdiction sua sponte

whenever it may be lacking.” Cadet v. Bulger, 377 F.3d 1173, 1179 (11th Cir.

2004) (quotation omitted). We review our subject matter jurisdiction de novo.

Resendiz-Alcaraz v. U.S. Att’y Gen., 383 F.3d 1262, 1266 (11th Cir. 2004).

      In immigration cases, we may review a final order of removal only if “the

alien has exhausted all administrative remedies available to the alien as of right.”

8 U.S.C. § 1252(d)(1). Constitutional challenges and some due process claims,

however, do not require exhaustion because the BIA does not have the authority to

adjudicate those claims. Sundar v. INS, 328 F.3d 1320, 1325 (11th Cir. 2003).

Nevertheless, where the BIA can provide a remedy to the constitutional claim, “the

exhaustion requirement applies with full force.” Id. (holding that an alien should

have exhausted his due process claim that the IJ’s and BIA’s application of an

immigration statute violated the constitution, because “[i]t was within the BIA’s

authority to reconsider and change its decision”).
                                              6
       Here, Maina argues that she did not receive due process of law because the

IJ, in her removal proceedings, put her in a position that forced her to make an

unconscionable decision. It is undisputed, however, that Maina failed to appeal the

IJ’s order of voluntary departure. As such, Maina “deprived [the BIA] of the

opportunity to discover and correct its own error.” Id. (quotation and alteration

indication omitted). If Maina had appealed the IJ’s order of voluntary departure,

the BIA could have ascertained whether the procedure implemented at Maina’s

removal hearing did indeed force her into an unconscionable decision and, if so,

the BIA could have provided Maina relief. Because Maina did not appeal the IJ’s

order, however, the BIA determined that the order was final and that it would not

review Maina’s due process claim.5 Accordingly, we are without jurisdiction to

review the merits of Maina’s claim because she did not exhaust her administrative

remedies. See 8 U.S.C. § 1252(d)(1).

B. Motion to Reopen

       Maina also argues that the BIA abused its discretion in dismissing her

motion to reopen because (1) the motion was timely, (2) the motion was not barred

       5
         An alien may be granted voluntary departure only if the alien “waives appeal of all
issues.” 8 C.F.R. § 1240.26(b)(1)(i)(D). In Maina’s case, the IJ noted in the order of voluntary
departure that both parties waived their rights to appeal. AR at 84. Although one might argue
that this appeal waiver would have precluded Maina from directly appealing the IJ’s order, she
could have filed an appeal on the basis that her waiver had been involuntary, especially in light
of the nature of her due process claim. Further, neither party has addressed the effect, if any, of
the appeal waiver and the BIA did not rely on this waiver ground in its dismissal of Maina’s
appeal of her motion to reopen.
                                                  7
by the regulations, (3) the motion was not barred on other procedural grounds, and

(4) she presented clear and convincing evidence that her marriage was bona fide.6

“We review the BIA’s denial of a motion to reopen for an abuse of discretion.”

Abdi v. U.S. Att’y Gen., 430 F.3d 1148, 1149 (11th Cir. 2005) (per curiam). “Our

review is limited to determining whether there has been an exercise of

administrative discretion and whether the matter of exercise has been arbitrary or

capricious.” Id. (quotation omitted).

       “A motion to reopen proceedings shall state the new facts that will be proven

at a hearing to be held if the motion is granted.” 8 C.F.R. § 1003.23(b)(3). An IJ

will not grant a motion to reopen “unless the [IJ] is satisfied that evidence sought

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

or presented at the former hearing.” Id. Moreover, an IJ “has discretion to deny a

motion to reopen even if the moving party has established a prima facie case for

relief.” Id. We have previously held that:

       [a]t a minimum, there are at least three independent grounds upon
       which the [BIA] may deny a motion to reopen: 1) failure to establish a
       prima facie case; 2) failure to introduce evidence that was material

       6
         As an initial matter, the government argues that we lack jurisdiction over Maina’s claim
– that she is not statutorily ineligible for adjustment of status because her motion to reopen tolled
her voluntary departure period – on the basis that Maina failed to raise this claim before the IJ or
BIA. Although she did not raise this specific argument below, she did contend that her motion
to reopen was timely and that she was eligible for adjustment of status. See AR at 18.
Therefore, even if we are without jurisdiction to consider the specific argument regarding the
tolling of her voluntary departure period, we retain jurisdiction over her other claims.

                                                  8
      and previously unavailable; and 3) a determination that despite the
      alien’s statutory eligibility for relief, he or she is not entitled to a
      favorable exercise of discretion.

Al Najjar v. Ashcroft, 257 F.3d 1262, 1302 (11th Cir. 2001).

      Here, in dismissing Maina’s appeal, the BIA first found that the record

contained insufficient evidence to support a finding that Maina and her husband

had a bona fide marriage. Petitioners, such as Maina, who seek an adjustment of

status based on marriages entered into while in admissibility or deportation

proceedings, are barred from such adjustment unless they can prove “by clear and

convincing evidence to the satisfaction of the Attorney General” that the “marriage

was not entered into for the purpose of procuring the alien’s admission as an

immigrant.” 8 U.S.C. § 1255(e). The only effective supporting evidence Maina

submitted was the apartment lease in both her and her husband’s names. It was not

an abuse of discretion on the part of the BIA to find that this, standing alone, did

not constitute “clear and convincing evidence” that her marriage was bona fide.

      Further, Maina failed to submit with her motion to reopen “evidence that

was material and previously unavailable.” Al Najjar, 257 F.3d at 1302. In support

of her motion to reopen, Maina submitted, for the second time, her husband’s

naturalization application and their marriage certificate. She also submitted the

completed “Petition for Alien Relative,” the apartment lease, and the utility bills.

Because the apartment lease is dated 29 April 2003, it would have been available
                                            9
when she initially filed for a continuance in November 2003. The rest of the new

evidence is not “material” to Maina’s claim that her marriage was bona fide

because (1) there is no evidence in the record that Maina’s husband ever actually

filed the “Petition for Alien Relative” and (2) the utility and phone bills do not

reference Maina’s husband. Therefore, Maina failed to meet the requirement that

she present evidence that was “material and was not [previously] available.” 8

C.F.R. § 1003.23(b)(3).

       Finally, even if Maina had made a prima facie case for relief, the BIA would

still have retained discretion to deny her motion to reopen. See 8 C.F.R.

§ 1003.23(b)(3). Accordingly, the BIA did not abuse its discretion in dismissing

Maina’s appeal of the IJ’s denial of her motion to reopen.7

                                     III. CONCLUSION

       Maina appeals the BIA’s dismissal of her appeal of the IJ’s denial of her

motion to reopen removal proceedings. Because we lack jurisdiction over Maina’s

claim that the immigration judge violated her due process rights and because we

find that the BIA did not abuse its discretion in denying Maina’s motion to reopen,

we DISMISS IN PART and DENY IN PART Maina’s petition for review.




       7
       Because we dismiss and deny the petition on other grounds, we do not reach Maina’s
argument that the BIA erred in determining that she was procedurally barred from receiving
adjustment of status because she had failed to depart following a grant of voluntary departure.
                                                10
