            Case: 17-13688   Date Filed: 06/20/2018    Page: 1 of 6


                                                              [DO NOT PUBLISH]



             IN THE UNITED STATES COURT OF APPEALS

                     FOR THE ELEVENTH CIRCUIT
                       ________________________

                             No. 17-13688
                         Non-Argument Calendar
                       ________________________

                        Agency No. A034-346-402



GARY THOMAS GUEVARA,

                                                Petitioner,

versus

U.S. ATTORNEY GENERAL,

                                                Respondent.

                       ________________________

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

                              (June 20, 2018)

Before MARTIN, JORDAN, and JILL PRYOR, Circuit Judges.

PER CURIAM:
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      Gary Guevara, a native and citizen of Trinidad and Tobago, petitions for

review of the Board of Immigration Appeals’ order affirming the Immigration

Judge’s denial of his motion to reopen. Mr. Guevara argues that his motion to

reopen should have been granted because he did not have notice of his hearing date

and because his failure to appear was his prior counsel’s fault. After careful

review, we determine that we lack jurisdiction over his appeal and, accordingly,

dismiss the petition.

                                            I

      Mr. Guevara was born in Trinidad and Tobago and admitted to the United

States as a lawful permanent resident on November 23, 1973. Over a span of about

20 years, he was convicted of three offenses: grand larceny (August 24, 1979),

negotiating a worthless instrument (January 31, 1996), and theft of property (May

13, 1998). In 2010, Mr. Guevara left the United States for a brief trip to Trinidad

and attempted to reenter on April 6, 2010. On July 6, 2010, the Department of

Homeland Security issued him a Notice to Appear before an immigration judge

and charged him with inadmissibility under 8 U.S.C. § 1182(a)(2)(A)(i)(I) because

he had been convicted of crimes involving moral turpitude. See also Immigration

and Nationality Act § 212(a)(2)(A)(i)(I).

      Mr. Guevara’s counsel initially filed a motion to terminate proceedings on

his behalf on July 18, 2012, arguing that his civil and political rights were restored


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because the Governor of Alabama granted him a pardon. On August 14, 2012, the

IJ denied his motion to terminate proceedings, finding he had not been granted a

full and unconditional pardon.

       Mr. Guevara then conceded his removability and filed an untimely

application for waiver of inadmissibility on August 29, 2013. On August 5, 2015,

Mr. Guevara’s counsel was issued a Notice of Change in Hearing Location

indicating the individual hearing date was scheduled for April 4, 2016.                     Mr.

Guevara and his counsel failed to appear at the scheduled hearing, so the IJ ordered

him removed in absentia. See 8 U.S.C. § 1229a(b)(5)(A) (providing that, after an

alien or counsel receives written notice, he shall be ordered removed in absentia if

he does not appear at his removal proceeding).

       Mr. Guevara filed a motion to reopen proceedings on October 3, 2016. He

asserted that he believed the hearing was scheduled for October 14, 2016. But, he

acknowledged in his motion, that his “[c]ounsel received notice that the hearing

date would be changed to April 4, 2016 on June 28, 2014.” See Motion to Reopen

at ¶ 5.1

       The IJ denied his motion to reopen, finding that Mr. Guevara did not

overcome the presumption of notice and pointing to record evidence establishing
1
  Mr. Guevara’s counsel’s recollection that he received notice of the hearing date change on June
28, 2014 does not appear to align with the government’s records that the notice was mailed in
August of 2015. Mr. Guevara’s counsel may be mistaken about when he received the notice of
the hearing date, but nevertheless acknowledged that he received notice that it was set for April
4, 2016. As we explain, we do not have jurisdiction over these factual questions.
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that notice was sent and his attorney’s concession establishing that notice was

received. The IJ also determined that exceptional circumstances did not exist to

warrant reopening.    See INA § 240(b)(5)(C)(i), 8 U.S.C. § 1229a(b)(5)(C)(i)

(providing the procedure for the IJ to reopen a case “because of exceptional

circumstances”).   Mr. Guevara appealed to the BIA, which affirmed the IJ’s

decision and declined to order sua sponte reopening. See 8 C.F.R. § 1003.2(a)

(giving the BIA discretionary authority to reopen any case sua sponte). He timely

appealed the BIA’s decision.

                                        II

      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).   We review our subject-matter jurisdiction de novo.             See Amaya-

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

      Under 8 U.S.C. § 1252(a)(2)(C), we lack jurisdiction to review a “final order

of removal against an alien who is removable by reason of having committed a

criminal offense in [§] 1182(a)(2).” See also Arias v. U.S. Att’y Gen, 482 F.3d

1281, 1284 (11th Cir. 2007).    We also lack jurisdiction to review discretionary

decisions of the Attorney General or the Secretary of Homeland Security. See 8

U.S.C. § 1252(a)(2)(B)(ii).    Nevertheless, the REAL ID Act of 2005, which

amended 8 U.S.C. § 1252, restored us partial jurisdiction to review “constitutional


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claims or questions of law” that are raised in the petition for review. See 8 U.S.C.

§ 1252(a)(2)(D). See also Arias, 482 F.3d at 1283–84 (explaining that the REAL

ID Act provides jurisdiction over petitions if a question of law or colorable

constitutional claim arises).   A question of law, as the phrase is used in

§ 1252(a)(2)(D), includes claims by the petitioner “challeng[ing] the application of

an undisputed fact pattern to a legal standard.” Jean-Pierre v. U.S. Att’y Gen., 500

F.3d 1315, 1322 (11th Cir. 2007). We explained in Alexandre v. U.S. Attorney

General, 452 F.3d 1204, 1206 (11th Cir. 2006), that our jurisdiction under the

REAL ID Act “offers the same review as that formerly afforded in habeas corpus

which provided legal, but not factual or discretionary, determinations.” See also

Jean-Pierre, 500 F.3d at 1322 (noting that when “presented with a mixed question

of law and fact, the court should analyze it to the extent there are legal elements,

but should not review any factual elements”). Accordingly, unless Mr. Guevara

raises a question of law or a constitutional claim arising out of the removal

proceedings, we lack jurisdiction over the petition. See 8 U.S.C. § 1252(a)(2)(D).

      We conclude that Mr. Guevara has not properly raised a question of law or a

constitutional claim. His contention on appeal is that the BIA erred in refusing to

reopen his case because he lacked notice of the hearing date. Our precedent makes

clear, however, that in the context of a motion to reopen, whether an alien received

sufficient notice of his removal hearing is a finding of fact over which we lack


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jurisdiction. See Contreras–Rodriguez v. U.S. Att’y Gen., 462 F.3d 1314, 1317

(11th Cir. 2006) (reviewing constitutional claim, but explaining that, with respect

to notice, “it is not our role to make such factual findings”). Mr. Guevara’s

arguments on appeal underscore the factual nature of his petition. Rather than

raising legal claims or presenting constitutional issues, he argues that he lacked

notice because he erroneously relied on the advice of counsel and thought his

hearing was to occur in October of 2016, not April 4, 2016. Further, his opening

brief acknowledges that he is requesting our review of “findings of fact.” See

Initial Br. at 2. Without a legal question or constitutional claim to review, we lack

jurisdiction. See Arias, 482 F.3d at 1283–84.

      Without a constitutional claim, we also lack jurisdiction to review the BIA’s

refusal to exercise its discretion and sua sponte reopen Mr. Guevara’s case. See

Butka v. U.S. Att’y Gen., 827 F.3d 1278, 1286 (11th Cir. 2016) (“As [petitioner]

has not raised any constitutional claims, we lack jurisdiction to review the BIA’s

denial of her motion for sua sponte reopening.”).

                                         III

      For the foregoing reasons, we lack jurisdiction to review Mr. Guevara’s

petition.

      PETITION DISMISSED.




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