                                                               [DO NOT PUBLISH]


              IN THE UNITED STATES COURT OF APPEALS
                                                                   FILED
                      FOR THE ELEVENTH CIRCUITU.S. COURT OF APPEALS
                        ________________________ ELEVENTH CIRCUIT
                                                                MAR 12, 2010
                               No. 09-14098                      JOHN LEY
                           Non-Argument Calendar                   CLERK
                         ________________________

                          Agency No. A078-986-126

RAUNEL NOE JAIMES-AGUIRRE,

                                                                       Petitioner,

                                    versus

U.S. ATTORNEY GENERAL,

                                                                      Respondent.

                         ________________________

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

                               (March 12, 2010)

Before BLACK, MARCUS and PRYOR, Circuit Judges.

PER CURIAM:

      Raunel Noe Jaimes-Aguirre (“Aguirre”) seeks review of the order of the

Board of Immigration Appeals (“BIA”) affirming the decision of the Immigration
Judge (“IJ”) denying a motion to reconsider the IJ’s prior decision to deny a

motion to reopen Aguirre’s removal proceedings, which had been conducted in

absentia, pursuant to 8 U.S.C. § 1229a(b)(5)(A), (b)(5)(C), and (c)(6). On appeal,

Aguirre argues that: (1) the IJ’s reasoning for denying Aguirre’s motion to

reconsider as untimely was erroneous, and this erroneous denial was not a

determination on the merits; (2) when the BIA acknowledged that the IJ’s

reasoning was incorrect, the BIA should have remanded to the IJ to allow the IJ to

evaluate the merits of his motion to reconsider, and thereby review the additional

evidence that he had submitted, and to determine whether the removal proceedings

should be reopened sua sponte; and (3) the BIA erred by reviewing the merits of

the motion to reconsider, which involved reviewing the findings of the IJ on the

underlying motion to reopen, and then affirming, despite the IJ’s erroneous

reasoning. After careful review, we deny the petition.

      When the BIA issues a decision, we review only that decision, except to the

extent that the BIA expressly adopts the IJ’s decision. Al Najjar v. Ashcroft, 257

F.3d 1262, 1284 (11th Cir. 2001). “Insofar as the Board adopts the IJ’s reasoning,

we will review the IJ’s decision as well.” Id. In this case, the BIA issued its own

determination affirming the IJ’s decision to deny the motion for reconsideration, so

as to this issue, we will review only the decision of the BIA. However, to the

extent that the BIA relied on the findings of the IJ with respect to the underlying
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decision to deny the motion to reopen, we will review the decisions of both the IJ

and the BIA.

      We generally review the BIA’s denial of a motion to reconsider for abuse of

discretion. Assa’ad v. U.S. Att’y Gen., 332 F.3d 1321, 1341 (11th Cir. 2003). 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.”   Abdi v. U.S. Att’y Gen., 430 F.3d 1148, 1149 (11th Cir. 2005)

(quotation omitted).   A motion to reconsider presented to an IJ “shall state the

reasons for the motion by specifying the errors of fact or law in the [IJ’s] prior

decision and shall be supported by pertinent authority.” 8 C.F.R. § 1003.23(b)(2);

8 U.S.C. § 1229a(c)(6)(C).

      The BIA “may review questions of law, discretion, and judgment and all

other issues in appeals from decisions of immigration judges de novo.” 8 C.F.R. §

1003.1(d)(3)(ii); see Matter of Adelina Martinez, 25 I. & N. Dec. 66, 69, 76-79

(BIA 2009) (finding that the IJ’s discretionary grant of relief was not appropriate

after a de novo review of the evidence). Findings of fact determined by the IJ are

reviewed by the BIA only to determine if those findings are clearly erroneous. 8

C.F.R. § 1003.1(d)(3)(i). The concept of harmless error which does not prejudice

the substantial rights of a defendant, can be utilized in immigration proceedings.

See Matter of Santos, 19 I. & N. Dec. 105, 108-09 (BIA 1984).
                                         3
      An IJ has the sua sponte authority at any time to reopen or reconsider any

case in which he or she has made a decision, unless jurisdiction has vested in the

BIA. 8 C.F.R. § 1003.23(b)(1). Likewise, the BIA may at any time reopen or

reconsider sua sponte any case in which it has rendered a decision. 8 C.F.R. §

1003.2(a).   We lack jurisdiction to review decisions to            refuse to reopen

immigration proceedings in exercise of an agency’s sua sponte authority. Lenis v.

U.S. Att’y Gen., 525 F.3d 1291, 1293-94 (11th Cir. 2008); see also Kucana v.

Holder, No. 08-911, slip op. at 16 n.18 (Sup. Ct. Jan. 20, 2010).

      Here, the BIA did not err in conducting a de novo review of the motion to

reconsider and affirming the IJ’s denial of that motion. The BIA exercised its

authority to review the decision of the IJ de novo, and as part of its de novo review,

the BIA properly considered the findings of the IJ on the underlying motion to

reopen. See 8 C.F.R. § 1003.1(d)(3)(ii). Although the BIA discovered in its review

that the IJ’s reasoning for the denial of the motion to reconsider as untimely was

erroneous, it was not required to stop there and remand to the IJ. The BIA properly

continued its de novo review, and bound by the standard governing review of

motions to reconsider, the BIA properly reviewed the underlying decision -- the

denial of the motion to reopen -- to determine if an error of law or fact affected the

outcome of the motion to reopen which would justify granting the motion to

reconsider. See 8 C.F.R. § 1003.2(b)(1); 8 U.S.C. § 1229a(c)(6)(C). The BIA then
                                          4
concluded that Aguirre had not met his burden on a motion to reconsider because

he had not shown an error of law or fact affecting the underlying denial of the

motion to reopen. The BIA thus did not abuse its discretion in conducting a de

novo review and affirming the IJ’s denial of the motion to reconsider. Moreover,

Aguirre was not prejudiced by the erroneous reasoning of the IJ because the BIA

conducted an independent review on the merits and reached the same decision.

      Finally, to the extent Aguirre is arguing that the BIA’s decision prevented

the IJ from exercising her authority to reopen the removal proceedings sua sponte,

this argument fails because the IJ actually had two opportunities to exercise this

authority, but refused to do so.     The IJ had this opportunity when she was

considering the motion to reopen, and again, when she was considering the motion

to reconsider. Then, when Aguirre filed the appeal to the BIA, he was relying on

the BIA’s authority to reopen the removal proceedings sua sponte. See 8 C.F.R. §

1003.23(b)(1) (the IJ has sua sponte authority to reopen until jurisdiction is vested

in the BIA). Even after the Supreme Court’s decision in Kucana, we do not have

jurisdiction to review the refusal of the BIA to exercise its sua sponte authority to

reopen or reconsider. Kucana, No. 08-911, slip op. at 16 n.18; Lenis, 525 F.3d at

1293-94. For these reasons, we deny the petition.

      PETITION DENIED.



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