          United States Court of Appeals
                     For the First Circuit


No. 17-2068

                  LAURA LEMUS; MANUEL M. LEMUS,

                          Petitioners,

                               v.

                   JEFFERSON B. SESSIONS, III,
                        ATTORNEY GENERAL,

                           Respondent.


               PETITION FOR REVIEW OF AN ORDER OF
                THE BOARD OF IMMIGRATION APPEALS


                             Before

                  Torruella, Lynch, and Barron,
                         Circuit Judges.


     Jeffrey B. Rubin, Todd C. Pomerleau, and Rubin Pomerleau P.C.
on brief for petitioners.
     Elizabeth K. Fitzgerald-Sambou, Trial Attorney, Office of
Immigration Litigation, Civil Division, U.S. Department of
Justice, Chad A. Readler, Acting Assistant Attorney General, Civil
Division, and Margaret Kuehne Taylor, Senior Litigation Counsel,
on brief for respondent.


                         August 14, 2018
             LYNCH, Circuit Judge.           Laura and Manuel Lemus, both

natives of Guatemala, were ordered removed by an immigration judge

(IJ) in 2000.      The Board of Immigration Appeals (BIA) denied their

appeal in 2001.        Since then, the Lemuses have filed seventeen

motions with the BIA to reopen or reconsider that removal order.

Their latest motion, filed on August 29, 2017 with the BIA, claimed

that there was new relief available to them and that "exceptional

circumstances"      should   lead    the     BIA   to   reopen   their    removal

proceedings sua sponte.       The BIA was unpersuaded, and said so in

a reasoned decision.

             The Lemuses now petition for judicial review of the BIA's

denial of their motion.          We hold that the BIA did not abuse its

discretion in denying the Lemuses' time- and number-barred motion

to reopen.     The BIA also determined that sua sponte reopening was

unwarranted.       We dismiss the Lemuses' challenge to that decision

for lack of jurisdiction.

                                       I.

             The    Lemuses --      Laura,     Manuel,     and    their     three

children -- came to the United States from Guatemala in 1993.

Their nonimmigrant tourist visas authorized a six-month stay. They

overstayed.

             In late 1997, Laura applied for asylum, listing each

family member as a derivative applicant.                 Laura stated in her

application that she feared she and her family would be killed if


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they returned to Guatemala.       She said that she had been an active

member of the Union Centro Nacional (UCN) party.             The night of an

election, armed men from the rival political party had come to

Laura's home, guns drawn, searching for her and her brother. Laura

and her brother escaped, but Laura's aunt (a fellow UCN member)

was not so fortunate.       Several years later, shortly after the

Lemuses came to the United States, the UCN leader, Jorge Carpio

Nicolle, was assassinated.       Laura testified to this effect before

an asylum officer.    That officer determined that Laura's testimony

was not credible.     Among other issues, Laura could not describe

the UCN's politics. The officer concluded that Laura had not shown

that   she   qualified   for     asylum   and    so   he   referred   Laura's

application to the Immigration Court.

             The Immigration and Naturalization Service, in June

1999, sent the Lemuses a Notice to Appear at removal proceedings.

The agency charged each as subject to removal.             At the hearing, in

March 2000, the Lemuses conceded removability.             Laura renewed her

asylum request and requested statutory withholding of removal

under 8 U.S.C. § 1231(b)(3).        She repeated the political opinion

claim from her asylum application.           Like the asylum officer, the

IJ found Laura's testimony not credible.              He denied asylum and

statutory     withholding   of    removal,      but   granted   the   Lemuses

voluntary departure.




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              The Lemuses appealed this decision to the BIA.              They

argued that the BIA should reverse the IJ for failing to find that

Laura had a "well founded fear of persecution."             The BIA summarily

dismissed each appeal -- the Lemuses did not file briefs, and the

short statements in their appeal forms "fail[ed] to apprise [the

BIA] of the reasons" why it should reverse the IJ.

              After the BIA entered its final removal order on October

30,   2001,    the   Lemuses   filed      seventeen   motions   to   reopen    or

reconsider.     Among other things, they raised claims of ineffective

assistance     of    counsel   and   of    changed    country   conditions     in

Guatemala.      The BIA denied each motion.           The Lemuses filed three

petitions for our review.        This Court denied each petition.             See

Lemus v. Gonzales, 489 F.3d 399 (1st Cir. 2007) (denying the

petition); Lemus, et al. v. Gonzales, No. 05-1273 (1st Cir. July

12, 2005) (dismissing the petition); Lemus v. Ashcroft, No. 03-

1825 (1st Cir. Mar. 31, 2004) (summarily affirming the BIA's

decision).

              In this latest motion, filed on August 29, 2017 with the

BIA, Laura and Manuel once again argued for reopening.               This time

there was a new ground: their daughter, Mirna, had become a U.S.

citizen and filed visa petitions on their behalf.                     The visa

petitions were accepted, so the Lemuses would have been eligible

to apply to adjust their status to lawful permanent residents but

for the removal order.         They further argued that the BIA should


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reopen    their     cases       sua    sponte         because      of    "exceptional

circumstances."

              The BIA denied the Lemuses' motion as untimely filed and

numerically barred.        The BIA noted that potential eligibility for

adjustment of status is not an exception for the time and number

bars on motions to reopen.             And the BIA declined to reopen the

Lemuses removal proceedings sua sponte because it did not consider

their situation "exceptional."             The BIA noted that the Department

of Homeland Security had not joined the Lemuses' motion, but that

if it later did, the Lemuses could refile.

                                           II.

              The Lemuses' petition for review argues that the BIA

erred    by    denying     their     motion      to    reopen.      Where       we    have

jurisdiction, we review the BIA's denial of a motion to reopen for

abuse of discretion.          Sánchez–Romero v. Sessions, 865 F.3d 43, 45

(1st Cir. 2017).

              “[E]very alien ordered removed has a right to file one

motion”   with    the    IJ    or    BIA   to    “reopen     his    or   her     removal

proceedings.”      Dada v. Mukasey, 554 U.S. 1, 4–5 (2008); see 8

U.S.C. § 1229a(c)(7)(A).            That "motion to reopen shall be filed

within    90    days”    of    the     final      removal     order.        8        U.S.C.

§ 1229a(c)(7)(C)(i).          Here, the Lemuses brought their seventeenth

unsuccessful      motion      for    reopening        or   reconsideration       nearly

sixteen years after the initial removal order.                   Their filings gave


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no reason why the BIA should consider their submission timely,

except to say they earlier had not been eligible to apply for

adjustment of status.1          But eligibility to apply for adjustment of

status is not an exception to the number and time bars on motions

to   reopen.          See    id.   §§ 1229a(c)(7)(A),    (c)(7)(C)    (listing

exceptions       to    the     bars);   8   C.F.R.   § 1003.2(c)(3)    (same).

Consequently, the BIA correctly held the Lemuses had failed to

justify the delay and dismissed their motion as untimely.

                                         III.

               The Lemuses also challenge the BIA's decision not to

reopen sua sponte.           The BIA's regulations provide that the BIA may

reopen removal proceedings sua sponte (“on its own motion”) at any

time.       8 C.F.R. § 1003.2(a).       This circuit has long held that “sua

sponte authority is committed to the unbridled discretion of the

BIA, and the courts lack jurisdiction to review that judgment.”

Charuc v. Holder, 737 F.3d 113, 115 (1st Cir. 2013) (quoting Matos–

Santana v. Holder, 660 F.3d 91, 94 (1st Cir. 2011)).             The Lemuses

point to two bases for jurisdiction: the Supreme Court's decision


        1 The government says that this issue was unexhausted and
waived because the Lemuses failed to point to any exceptions to
the time and number bars on their motion before the BIA or on
appeal. But this means only that they cannot now argue that they
fit into an exception to the time and number bars. This is not
their argument.   The Lemuses claim that the BIA should reopen
because of new grounds for relief. They raised this point before
the BIA and on appeal. Their failure to point to any exceptions
to the time and number bars on their motion means that their
argument is meritless, not waived.


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in Reyes Mata v. Lynch, 135 S. Ct. 2150 (2015), and 8 U.S.C.

§ 1252(a)(2)(D).

           Mata gives no jurisdiction to review this denial of sua

sponte reopening by the BIA.          In Mata, the Supreme Court declined

to   address   whether     appeals    courts   have     authority    to   review

exercises of that discretionary power.             See Mata, 135 S. Ct. at

2155.   In fact, the Court acknowledged that courts of appeals have

held that they generally lack such authority.             Id.

           This    court    has      not   determined     whether    8    U.S.C.

§ 1252(a)(2)(D) gives courts of appeals jurisdiction to review,

under certain circumstances, the BIA's decision not to reopen sua

sponte.   See Reyes v. Sessions, 886 F.3d 184, 188 (1st Cir. 2018).

We declined to decide that issue in Reyes and we decline to do so

here.   See id.   Section 1252(a)(2)(D) "only arguably applies to a

petitioner's    constitutional       or    legal   challenges   if    they   are

colorable," id. (citing Ayeni v. Holder, 617 F.3d 67, 71 (1st Cir.

2010)), and the Lemuses' are not.

           The Lemuses argue that the BIA's decision not to reopen

sua sponte denied them due process and that the BIA's explanation

of its refusal to exercise sua sponte authority was so paltry that

it likewise denied them due process.               That is not so.        A due

process claim can only succeed if there is a “cognizable liberty

interest,” Matias, 871 F.3d at 72 (quoting Mejia–Orellana v.

Gonzales, 502 F.3d 13, 17 (1st Cir. 2007)). But the BIA's exercise


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of its “purely discretionary” sua sponte authority “does not create

a cognizable liberty interest.”             Id.   This deficiency is fatal to

their claims.

            The    Lemuses    have    one    final   argument:     that   the   BIA

violated    an    existing    policy    regarding       reopening,    making    its

decision not to reopen "arbitrary, capricious, [or] an abuse of

discretion."      See 5 U.S.C. § 706(2)(A); INS v. Yang, 519 U.S. 26,

32 (1996).       They cite Matter of Garcia, 16 I. & N. Dec. 653 (BIA

1978), where the BIA determined that it would favorably exercise

its discretion when the movant was prima facie eligible for

adjustment of status.         But this argument is unavailing.               First,

Garcia was decided years before Congress enacted time and number

bars on motions to reopen.           See Dada, 554 U.S. at 13 (summarizing

the relevant congressional history).                 Second, the BIA has on

several    occasions    significantly        modified    Garcia.      See,   e.g.,

Matter of Velarde-Pacheco, 23 I. & N. Dec. 253, 256 (BIA 2002),

overruled in part on other grounds by Matter of Avetisyan, 25 I.

& N. Dec. 688 (BIA 2002); Matter of H-A-, 22 I.& N. Dec. 728, 730-

36 (BIA 1999); Matter of Arthur, 20 I. & N. Dec. 475, 477-79 (BIA

1992).     We have thus noted having "some doubts" about Garcia's

continuing vitality.         Dawoud v. Holder, 561 F.3d 31, 35 n.5 (1st

Cir. 2009).        And third, even if Garcia remains, it gives the

Lemuses    no    colorable    claim.        Garcia   did   not     establish    "an

inflexible rule" under which an immigration judge must favorably


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exercise his discretion; rather, it conferred "broad discretion."

Oluyemi v. INS, 902 F.2d 1032, 1034 (1st Cir. 1990) (quoting

Garcia, 16 I. & N. at 656).         We have already concluded that the

BIA did not abuse its discretion in denying the Lemuses' time- and

number-barred     motion.       The        Lemuses    have     no     colorable

constitutional    or   legal   claim   on     which   we     might    base    our

jurisdiction if the statute were to provide an arguable basis.

                                     IV.

           The Lemuses' petition for review is denied as to their

challenge to the BIA's determination that the motion to reopen was

untimely   and   number   barred.      It    is   dismissed     for    lack   of

jurisdiction as to their challenge to the BIA's decision to not

exercise its authority to reopen sua sponte.




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