           Case: 17-15427    Date Filed: 12/19/2018   Page: 1 of 4


                                                      [DO NOT PUBLISH]



            IN THE UNITED STATES COURT OF APPEALS

                    FOR THE ELEVENTH CIRCUIT
                      ________________________

                            No. 17-15427
                        Non-Argument Calendar
                      ________________________

                        Agency No. A094-889-030



SULARDY GONZALEZ,
FRANCISCO JAIME ROCHA MARTIN,

                                                                      Petitioners,

                                  versus

U.S. ATTORNEY GENERAL,

                                                                     Respondent.

                      ________________________

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

                            (December 19, 2018)

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

PER CURIAM:
              Case: 17-15427     Date Filed: 12/19/2018   Page: 2 of 4


      Sulardy Gonzalez seeks review of the Board of Immigration Appeals’

(“BIA”) denial of her motion to reopen its final order affirming the Immigration

Judge’s (“IJ”) denial of her application for asylum, withholding of removal, and

relief under the United Nations Convention Against Torture and other Cruel,

Inhuman or Degrading Treatment or Punishment on behalf of herself and her then-

husband Franscisco Rocha. She argues that the BIA abused its discretion by

denying her motion as time- and number-barred without considering whether

equitable tolling applied. She also argues that the BIA abused its discretion by not

exercising its authority to reopen her case sua sponte.

                                          I.

      We review the BIA’s denial of a motion to reopen removal proceedings for

an abuse of discretion. Zhang v. U.S. Att’y Gen., 572 F.3d 1316, 1319 (11th Cir.

2009). This review is limited to determining whether the BIA exercised its

discretion in an arbitrary or capricious manner. Id.

      We review de novo our subject matter jurisdiction. Ruiz v. Gonzales, 479

F.3d 762, 765 (11th Cir. 2007). We lack jurisdiction to review final orders in

immigration cases unless “the alien has exhausted all administrative remedies

available to the alien as of right.” Immigration and Nationality Act (“INA”)

§ 242(d)(1), 8 U.S.C. § 1252(d)(1). If a petitioner has failed to exhaust her

administrative remedies by not raising an issue before the BIA, we lack jurisdiction


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to consider the claim. Amaya-Artunduaga v. U.S. Att’y Gen., 463 F.3d 1247, 1250

(11th Cir. 2006).

      We may grant a petition for review, vacate an agency decision, and remand

for further proceedings if the agency’s decision is “so lacking in reasoned

consideration and explanation that meaningful review [is] impossible.” Indrawati

v. U.S. Att’y Gen., 779 F.3d 1284, 1302 (11th Cir. 2015). In a reasonable

consideration inquiry, we look “to ensure that the IJ and the BIA considered the

issues raised and announced their decisions in terms sufficient to enable review.”

Id. A claim that a BIA decision lacked reasonable consideration does not need to

be exhausted before the BIA, because the claim cannot exist until after the BIA

issues its ruling. See id. at 1299. However, the BIA does not err by not

considering an argument the petitioner does not make before it. See Jeune v. U.S.

Att’y Gen., 810 F.3d 792, 802 (11th Cir. 2016) (noting in the context of a reasoned

consideration challenge that “it is hard to understand how [Jeune] can fault [the

agency] for its failure to intuit an argument he never made”).

      Generally, an alien may only file one motion to reopen, and it must be filed

within 90 days of the date of the BIA’s final administrative removal order. See

INA § 240(c)(7)(A), (C)(i), 8 U.S.C. § 1229a(c)(7)(A), (C)(i); 8 C.F.R.

§ 1003.2(c)(2). The 90-day deadline is subject to equitable tolling. Avila-Santoyo

v. U.S. Att’y Gen., 713 F.3d 1357, 1364 (11th Cir. 2013) (en banc). Equitable


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tolling requires a litigant to show that she has been pursuing her rights diligently

and that some extraordinary circumstance stood in her way. Id. at 1363 n.5.

       Here, the BIA did not abuse its discretion in concluding that the motion to

reopen was time- and number-barred because Gonzalez filed the motion more than

seven years after the BIA’s removal order became final and it was her second

motion to reopen. Further, the BIA did not err by not considering whether these

limits should be equitably tolled because Gonzalez did not make that argument

before it.

                                          II.

       The BIA may at any time reopen sua sponte any case in which it has

rendered a decision. 8 C.F.R. § 1003.2(a). Generally, the decision to reopen sua

sponte is committed to agency discretion, which is so wide and standardless that it

is not reviewable. Lenis v. U.S. Att’y Gen., 525 F.3d 1291, 1293-94 (11th Cir.

2008). We do, however, retain jurisdiction to address constitutional claims that are

raised. Lin v. U.S. Att’y Gen., 881 F.3d 860, 871 (11th Cir. 2018).

       Here, we do not have jurisdiction to review Gonzalez’s argument that the

BIA should have exercised its authority to reopen her case sua sponte because it is

a decision committed to agency discretion.

       PETITION DISMISSED IN PART AND DENIED IN PART.




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