           Case: 15-14269   Date Filed: 04/29/2016   Page: 1 of 5


                                                         [DO NOT PUBLISH]



            IN THE UNITED STATES COURT OF APPEALS

                    FOR THE ELEVENTH CIRCUIT
                      ________________________

                            No. 15-14269
                        Non-Argument Calendar
                      ________________________

                        Agency No. A029-147-452



JOSE ADALBERTO DURAN,

                                                                    Petitioner,

                                  versus



U.S. ATTORNEY GENERAL,

                                                                Respondent.

                      ________________________

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

                             (April 29, 2016)

Before WILSON, WILLIAM PRYOR, and FAY, Circuit Judges.

PER CURIAM:
                  Case: 15-14269       Date Filed: 04/29/2016       Page: 2 of 5


         Jose Adalberto Duran seeks review of the Board of Immigration Appeals’

(BIA) denial of his motion to reopen and reconsider its final administrative order

of removal. After thorough review of the record and the parties’ briefs, we dismiss

the petition, in part, and deny the remainder. 1

                                                 I

         On July 22, 2015, Duran filed a motion with the BIA to reopen his removal

proceedings, which had resulted in an order of deportation on February 26, 2010.

Duran’s motion raised two claims: (1) Duran’s due process rights were violated

when the immigration judge (IJ) “essentially amended the charging document to

include the charge of committing an aggravated felony,” and (2) the “petty

offense” exception, see 8 U.S.C § 1182(a)(2)(A)(ii)(II), should have applied to his

prior conviction of unlawful sexual intercourse with a minor because he was

sentenced to only 90 days suspended imprisonment and probation.

         The BIA characterized the motion as a motion to reconsider its prior order

and denied relief on grounds that (1) whether characterized as a motion to reopen

or a motion to reconsider, it was time-barred; (2) it failed to identify errors of law

or fact that warranted reconsideration of the earlier order; (3) Duran did not offer

any new, material, previously unavailable evidence; (4) all the claims raised could

have been brought previously; and (5) no extraordinary circumstances warranted


   1
       As we write for the parties, we set out only what is necessary to address Duran’s arguments.
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exercise of the BIA’s sua sponte authority to reopen proceedings or reconsider the

order. Duran then filed the present appeal.

      Duran argues that the BIA abused its discretion in denying his motion

because (1) his due process rights were violated by the IJ’s erroneous amending of

the Notice to Appear; (2) the proceedings before the IJ were biased; (3) he is now

eligible for adjustment of status; (4) the IJ made erroneous factual findings; (5)

both the IJ and BIA overlooked his eligibility for relief under the United Nations

Convention Against Torture and Other Cruel, Inhuman, or Degrading Treatment or

Punishment; and (6) although his motion is untimely, the doctrine of laches and

equitable estoppel prevent his deportation because the government engaged in

misconduct when it delayed twenty years in processing his asylum claim.

Additionally, Duran moved to stay removal pending review. The Attorney General

moved to dismiss in part and summarily deny the remainder. We denied Duran’s

motion to stay removal and carried the government’s motion to dismiss in part with

the case.

                                          II

      “We review [our] subject matter jurisdiction de novo.” See Gonzalez-

Oropeza v. U.S. Att’y Gen., 321 F.3d 1331, 1332 (11th Cir. 2003) (per curiam).

“[W]e retain jurisdiction over constitutional claims and questions of law raised in a

petition for review.” Jeune v. U.S. Att’y Gen., 810 F.3d 792, 799 (11th Cir. 2016);


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see 8 U.S.C. § 1252(a)(2)(D). However, we lack jurisdiction to review the BIA’s

exercise or non-exercise of its sua sponte authority, see Lenis v. U.S. Att’y Gen.,

525 F.3d 1291, 1294 (11th Cir. 2008), or those claims not properly exhausted

through the administrative process, see 8 U.S.C. § 1252(d)(1); Amaya-Artunduaga

v. U.S. Att’y Gen., 463 F.3d 1247, 1250 (11th Cir. 2006) (per curiam). The

exhaustion requirement applies to those constitutional claims for which the BIA

can provide a remedy. See Sundar v. INS, 328 F.3d 1320, 1325 (11th Cir. 2003).

                                           III

      Duran’s appeal raises no claim upon which we may grant relief. Although

we would ordinarily have jurisdiction to review Duran’s due process argument

because it is a constitutional claim, we lack jurisdiction here because Duran’s

constitutional claim is of the type that the BIA could have remedied had the claim

been properly exhausted. If Duran had raised his due process claim on direct

appeal to the BIA in 2008, then the BIA could have evaluated its merits and

determined whether the IJ erred in accepting the additional charges of removability

contained in Form I-261. However, Duran did not exhaust this claim—he raised it

for the first time in the motion to reopen or reconsider. Consequently, we lack

jurisdiction to review it today. See id.

      All the other arguments raised in Duran’s brief—including, inter alia, his

eligibility for relief due to the doctrine of laches, equitable estoppel, or the IJ’s


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brusque manner—were not but could have been brought either on direct appeal

before the BIA or in Duran’s motion to reopen. Although Duran describes these

arguments in his brief as part of his due process claim, Duran cannot amend his

motion through argument made in his brief. Cf. Miccosukee Tribe of Indians of

Fla. v. United States, 716 F.3d 535, 559 (11th Cir. 2013). Accordingly, Duran did

not properly exhaust these claims and we lack jurisdiction to review them here.

See Amaya-Artunduaga, 463 F.3d at 1250.

      Additionally, Duran argues about eligibility for deferral of removal under 8

C.F.R. § 1208.17(a), but he never raised that issue before this appeal. Therefore,

the claim was not properly exhausted and we lack jurisdiction to address it. See

Amaya-Artunduaga, 463 F.3d at 1250.

      Lastly, Duran provided no briefing on the petty offense exception. We

therefore treat this claim as waived on appeal. See Access Now, Inc. v. Sw. Airlines

Co., 385 F.3d 1324, 1330 (11th Cir. 2004) (“[A] legal claim or argument that has

not been briefed before the court is deemed abandoned and its merits will not be

addressed.”).

      Thus, Duran’s petition is DISMISSED IN PART and DENIED IN PART.




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