           Case: 14-11367   Date Filed: 10/02/2015   Page: 1 of 10


                                                         [DO NOT PUBLISH]



            IN THE UNITED STATES COURT OF APPEALS

                    FOR THE ELEVENTH CIRCUIT
                      ________________________

                        Nos. 14-11367 & 14-15545
                         Non-Argument Calendar
                       ________________________

                        Agency No. A078-402-743



ISAAC KUAMENA AFFAINIE,


                                                      Petitioner,

                                  versus

U.S. ATTORNEY GENERAL,

                                                      Respondent.

                       ________________________

                  Petitions for Review of Decisions of the
                       Board of Immigration Appeals
                        ________________________

                             (October 2, 2015)

Before HULL, ROSENBAUM and JILL PRYOR, Circuit Judges.

PER CURIAM:
             Case: 14-11367     Date Filed: 10/02/2015   Page: 2 of 10


      Isaac Affainie has filed two petitions for review of Board of Immigration

(“BIA”) decisions. In petition 14-11367, he seeks review of the BIA’s denial of

his first motion to reopen his removal proceedings, and in petition 14-15545, he

seeks review of the BIA’s denial of his motion for the BIA to reopen sua sponte.

After careful review, we deny petition 14-11367 and dismiss petition 14-15545.


                                         I.

      Mr. Affainie is a citizen of the Ivory Coast who entered the United States as

a non-immigrant student. While living in the United States, he married Kary

Edwards, a United States citizen. In 2009, Ms. Edwards filed an I-130 petition

seeking a visa for Mr. Affainie based on his status as her spouse. The petition

indicated that Mr. Affainie had never previously been married. The United States

Citizenship and Immigration Services (“USCIS”) denied the petition, explaining

that records showed Mr. Affainie had previously married Catherine Djumfuoh in

Italy in 1992. Because there was no evidence of a divorce, USCIS concluded that

Mr. Affainie was still married to Ms. Djumfuoh and that he had never legally

married Ms. Edwards.

      In 2012, the Department of Homeland Security (“DHS”) charged Mr.

Affainie with removability as an alien who was inadmissible at the time of entry or

adjustment of status because he sought to procure an immigration benefit by fraud

or willfully misrepresenting a material fact. See 8 U.S.C. § 1227(a)(1)(A). DHS

                                         2
             Case: 14-11367     Date Filed: 10/02/2015   Page: 3 of 10


alleged that: Mr. Affainie’s marriage to Ms. Edwards was fraudulent; Mr. Affainie

was still married to Ms. Djumfuoh when he married Ms. Edwards, rendering his

second marriage null and void; and Mr. Affainie had misrepresented a material fact

when he indicated in his visa petition and other immigration documents that he had

no prior marriages.

      After a hearing, the immigration judge determined Mr. Affainie

misrepresented a material fact when he failed to disclose his previous marriage to

Ms. Djumfuoh in his visa petition and other similar forms. The immigration judge

also concluded that Mr. Affainie’s marriage to Ms. Edwards was null and void

because he was still married to Ms. Djumfour at the time he wed Ms. Edwards.

The immigration judge found that Mr. Affainie and Ms. Djumfour had married in a

customary marriage ceremony in Ghana and also entered into marriage in Italy.

Although Mr. Affainie and Ms. Djumfour divorced in Ghana, the immigration

judge found that the divorce dissolved only the Ghanian customary marriage, not

their Italian marriage. The immigration judge also concluded, however, that DHS

failed to prove by a preponderance of the evidence that Mr. Affainie and Ms.

Edwards had married for the purpose of procuring Mr. Affainie’s admission as an

immigrant.

      Mr. Affainie appealed to the BIA, which affirmed the immigration judge’s

decision. The BIA affirmed for the reasons stated in the immigration judge’s order


                                         3
              Case: 14-11367     Date Filed: 10/02/2015   Page: 4 of 10


and wrote separately to emphasize two points. First, the BIA explained that the

operation of the laws of foreign countries, like Ghana and Italy, is a question of

fact and that an immigration judge’s factual finding can be reversed only if it is

clearly erroneous. Second, the BIA stated that it was affirming on the alternative

ground that the immigration judge found that Mr. Affainie lied in the visa petition

about the fact that he had previously been married.

      Mr. Affainie did not appeal the BIA’s decision but instead filed with the

BIA a motion to reopen, arguing that he had obtained new evidence. After the

immigration judge’s decision, Mr. Affainie filed a petition in Florida state court to

dissolve his marriage to Ms. Djumfuoh. In response, she moved to dismiss the

petition on the basis that the parties had already divorced in Ghana. Because Ms.

Djumfuoh had “establish[ed] the dissolution of [the] customary marriage under

Ghanian law,” the Florida state court dismissed the divorce action. Mr. Affainie’s

new evidence was the pleadings and order from the Florida divorce action, which

he claimed showed that the divorce in Ghana dissolved not only the customary

marriage in Ghana but also the marriage entered into in Italy.

      The BIA denied Mr. Affainie’s motion to reopen for several reasons. First,

Mr. Affainie failed to demonstrate that he could not have commenced and resolved

the Florida divorce proceedings prior to his hearing before the immigration judge.

Second, the BIA concluded that Mr. Affainie’s new evidence was immaterial


                                          4
              Case: 14-11367     Date Filed: 10/02/2015    Page: 5 of 10


because it was not probative of whether the dissolution of his customary marriage

in Ghana also invalidated his marriage independently entered into under Italian

law. The BIA explained that because the state court pleadings did not show that

the state court even was aware that Mr. Affainie and Ms. Djumfuoh had a

customary marriage in Ghana as well as a marriage in Italy, the state court’s

decision could not have addressed whether the Ghanian divorce had dissolved the

Italian marriage. Third, Mr. Affainie failed to make a prima facie case showing he

was entitled to relief. Mr. Affainie filed with this Court a petition for review of the

BIA’s denial of his motion to reopen.

      Shortly after he sought review in this Court, Mr. Affainie also filed a

“motion to reopen/reconsider sua sponte” with the BIA. After the BIA denied his

first motion to reopen, Mr. Affainie went back to Florida state court and presented

evidence about his Italian marriage to Ms. Djumfuoh. The Florida state court then

entered a new order concluding that the Ghanaian divorce had dissolved both the

Ghanian customary marriage and the Italian marriage. The BIA denied Mr.

Affainie’s motion to reopen sua sponte because it determined that he failed to

identify an exceptional situation warranting reopening of the proceedings under the

BIA’s sua sponte authority. Mr. Affainie filed a petition for review of this

decision with this Court, and we consolidated the proceedings on his two petitions

for review.


                                           5
              Case: 14-11367    Date Filed: 10/02/2015    Page: 6 of 10


                                         II.

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

Ali v. U.S. Attorney Gen., 443 F.3d 804, 808 (11th Cir. 2006). Under this standard,

“[o]ur 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. (internal quotation marks omitted). We review our subject matter

jurisdiction de novo. Id.

                                         III.

      Because Mr. Affainie filed no petition for review of the BIA’s decision

affirming the immigration judge’s order, we lack jurisdiction to review that

decision. See 8 U.S.C. § 1252(b)(1) (requiring petition for review to filed no later

than 30 days after the date of the final order of removal); Lin v. U.S. Attorney

Gen., 677 F.3d 1043, 1045 (11th Cir. 2012) (“[T]he statutory limit for filing a

petition for review in an immigration proceeding is mandatory and jurisdictional

. . . .” (internal quotation marks omitted)). Our review is limited to the BIA’s

denials of Mr. Affainie’s motions to reopen.

      We first consider petition 14-11367, in which Mr. Affainie seeks review of

the BIA’s denial of his first motion to reopen. We have held

      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 and previously
      unavailable; and 3) a determination that despite the alien’s statutory
                                          6
               Case: 14-11367       Date Filed: 10/02/2015      Page: 7 of 10


       eligibility for relief, he or she is not entitled to a favorable exercise of
       discretion.

Najjar v. Ashcroft, 257 F.3d 1262, 1302 (11th Cir. 2001). The BIA denied Mr.

Affainie’s motion to reopen for several reasons, including that his new evidence

was not probative of the key issue in the case: whether Mr. Affainie’s Italian

marriage to Ms. Djumfuoh was dissolved when he divorced in Ghana. When the

BIA denied Mr. Affainie’s motion on the basis that his new evidence was not

probative of that issue, it in effect determined that his new evidence was

immaterial.

       We conclude that there was no abuse of discretion. Although the Florida

state court concluded that Mr. Affainie’s Ghana divorce dissolved his marriage to

Ms. Djumfuoh, the court’s order shows that it considered only whether the

Ghanian customary marriage was dissolved. In fact, the pleadings from the Florida

divorce action do not show that the court was even aware that Mr. Affainie and

Ms. Djumfuoh had entered into a separate marriage in Italy. In the absence of

evidence that the Florida state court had considered whether Mr. Affainie and Ms.

Djumfuoh’s separate marriage in Italy was terminated, we simply cannot say that

the BIA abused its discretion when it determined that the new evidence was

immaterial. We thus deny this petition. 1


       1
         Because we conclude that the BIA did not abuse its discretion when it concluded that
the evidence was immaterial, we need not address the Attorney General’s alternative arguments
                                              7
                Case: 14-11367        Date Filed: 10/02/2015        Page: 8 of 10


                                                IV.

       We now turn to petition 14-15545, in which Mr. Affainie argues that the

BIA abused its discretion when it refused to reopen his immigration proceedings

sua sponte. Mr. Affainie urges us to reconsider our decision in Lenis v. U.S.

Attorney Gen., 525 F.3d 1291, 1292-94 (11th Cir. 2008)—holding that we lack

jurisdiction to review the BIA’s denial of a motion to reopen based on its sua

sponte authority—in light of the Supreme Court’s subsequent decision in Kucana

v. Holder, 558 U.S 233 (2010).

       The BIA may reopen or reconsider any case in which it has rendered a

decision at any time sua sponte, including upon a party’s written request. 8 C.F.R.

§ 1003.2(a). In Lenis, we explained that we lacked jurisdiction to review a BIA

decision denying a motion to reopen based on its sua sponte authority because

§ 1003.2(a) provided “absolutely no standard to govern the BIA’s exercise of its

discretion.” Lenis, 525 F.3d at 1293. Under the prior precedent rule, we are bound

that Mr. Affainie could have resolved the issue regarding his first marriage in state court prior to
the hearing before the immigration judge and that he failed to make a prima facie showing that
his current marriage was valid.
        The Attorney General also argues that we should deny the petition on the basis that Mr.
Affainie waived any argument that he could not have obtained evidence regarding his first
marriage from the state court prior to the hearing before the immigration judge because he failed
to present this issue adequately in his opening brief to this Court. It is true that “[w]hen an
appellant fails to offer argument on an issue, that issue is abandoned.” Sepulveda v. U.S.
Attorney Gen., 401 F.3d 1226, 1228 n.2 (11th Cir. 2005) (per curiam). Although it is a close
question, we conclude that Mr. Affainie presented this argument in his opening brief when he
explained that he tried to obtain a divorce decree in Manatee County, Florida, and court
personnel told him that Florida courts could not issue a divorce decree because neither he nor
Ms. Djumfuoh was a resident of Florida and because their marriage had not been entered into in
Florida.
                                                 8
              Case: 14-11367     Date Filed: 10/02/2015   Page: 9 of 10


to follow Lenis “unless and until it is overruled by this court en banc or by the

Supreme Court.” United States v. Vega-Castillo, 540 F.3d 1235, 1236 (11th Cir.

2008) (per curiam) (internal quotation marks omitted). It is undisputed that we

have not overruled Lenis in an en banc decision. The only question is whether the

Supreme Court has done so.

      In Kucana, the Supreme Court considered 8 U.S.C. § 1252(a)(2)(B)(ii),

which provides that no court shall have jurisdiction to review any decision or

action by the Attorney General where the authority for the decision is specified

under 8 U.S.C. §§ 1151-1381 to be in the discretion of the Attorney General.

558 U.S. at 237. The Court held that § 1252(a)(2)(B)(ii) bars only judicial review

of discretionary decisions when Congress has set out the Attorney General’s

discretionary authority in §§ 1151-1381. The Supreme Court stated that it

“express[ed] no opinion on whether federal courts may review the [BIA’s] decision

not to reopen removal proceedings sua sponte” and noted that the “Courts of

Appeals have held that such decisions are unreviewable because sua sponte

reopening is committed to agency discretion by law, see 5 U.S.C. § 701(a)(2).”

Kucana, 558 U.S. at 251 n.18.

      Because Lenis has not been overruled either by this Court sitting en banc or

the Supreme Court’s decision in Kucana, we are bound to follow our prior

precedent. Therefore, we conclude that we lack jurisdiction to review the BIA’s


                                          9
            Case: 14-11367    Date Filed: 10/02/2015   Page: 10 of 10


refusal to sua sponte reopen Mr. Affainie’s removal proceedings; accordingly, we

dismiss petition 14-15545.

                                       V.

      For the foregoing reasons, we deny petition 14-11367 and dismiss petition

14-15545.

      PETITION 14-11367 DENIED, PETITION 14-15545 DISMISSED.




                                       10
