            Case: 15-10566    Date Filed: 12/28/2015   Page: 1 of 5


                                                          [DO NOT PUBLISH]



             IN THE UNITED STATES COURT OF APPEALS

                     FOR THE ELEVENTH CIRCUIT
                       ________________________

                             No. 15-10566
                         Non-Argument Calendar
                       ________________________

                        Agency No. A031-427-914



CARLOS CARDENAS-GUERRERO,

                                                                        Petitioner,

                                   versus

U.S. ATTORNEY GENERAL,

                                                                      Respondent.

                       ________________________

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

                             (December 28, 2015)



Before TJOFLAT, JILL PRYOR and BLACK, Circuit Judges.

PER CURIAM:
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       Carlos Cardenas-Guerrero seeks review of the Board of Immigration

Appeals’ (BIA) dismissal of his appeal from the Immigration Judge’s (IJ) denial of

his motion to reopen removal proceedings, pursuant to the Immigration and

Nationality Act (INA), 8 U.S.C. § 1229a(c)(7). Cardenas-Guerrero asserts the BIA

and IJ’s denial of his motion to reopen his removal proceedings violated his due

process rights because the IJ in the underlying deportation proceedings conducted

the merits hearing without his counsel present and failed to advise him of his right

to counsel. Cardenas-Guerrero further contends the BIA abused its discretion by

not exercising its ability to sua sponte reopen the deportation proceedings based on

the deprivation of his due process rights during the deportation hearing. After

review, 1 we dismiss and deny the petition.

                                       I. DISCUSSION

A. Equitable Tolling

       A “motion to reopen shall be filed within 90 days of the date of entry of a

final administrative order of removal,” subject to certain exceptions. 8 U.S.C.

§ 1229a(c)(7)(C)(i). The time bar for motions to reopen is not jurisdictional, and

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          We review the 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). Our review “is
limited to determining whether the BIA exercised its discretion in an arbitrary or capricious
manner. The moving party bears a heavy burden, as motions to reopen are disfavored, especially
in removal proceedings.” Id. (internal citations omitted). We review de novo whether we have
subject matter jurisdiction to consider a petition for review. Ruiz v. Gonzales, 479 F.3d 762, 765
(11th Cir. 2007).



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thus equitable tolling may be available. See Avila-Santoyo v. U.S. Att’y Gen., 713

F.3d 1357, 1362-65 (11th Cir. 2013) (en banc). Because Cardenas-Guerrero did

not file his motion to reopen for more than 24 years his motion was untimely and

he needed to satisfy the equitable tolling requirements.

      The BIA did not abuse its discretion by affirming the IJ’s denial of

Cardenas-Guerrero’s motion to reopen. The BIA did not exercise its discretion in

an arbitrary or capricious manner because it reasonably concluded from the

evidence that Cardenas-Guerrero did not exercise due diligence in pursuing his

rights. See Avila-Santoyo, 713 F.3d at 1363 n.5 (stating to establish eligibility for

equitable tolling, a litigant must show that (1) he has been pursuing his rights

diligently, and (2) some extraordinary circumstance stood in his way). According

to Cardenas-Guerrero’s declaration, he sought documentation from his former

attorney in late 1988 that could confirm his case had been resolved favorably, but

received none. There is no evidence that Cardenas-Guerrero did anything after that

point to follow up or to try to obtain the status of his case from immigration

authorities. Consequently, the BIA was within its discretion to conclude that

Cardenas-Guerrero failed to show the requisite diligence. Because Cardenas-

Guerrero did not make the threshold showing that he was entitled to equitable

tolling, we need not consider the merits of his motion to reopen pursuant to an

ineffective assistance of counsel claim. See Ruiz-Turcios v. U.S. Att’y Gen., 717


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F.3d 847, 851 (11th Cir. 2013) (explaining the eligibility for equitable tolling is a

threshold showing that must be made before the merits of the claim underlying a

motion to reopen can be considered).

B. Sua Sponte Reopening

      We lack jurisdiction to review the BIA’s denial of a motion to reopen based

on the BIA’s sua sponte authority because the regulation permitting sua sponte

reopening provides no meaningful standard against which to judge the BIA’s

exercise of its discretion. See Lenis v. U.S. Att’y Gen., 525 F.3d 1291, 1292-94

(11th Cir. 2008). As we explained in Lenis, no statute expressly authorizes sua

sponte reopening, and instead the regulatory authorization to sua sponte reopen

derives from a statute granting general authority over immigration matters to the

Attorney General, a statute that “sets no standard for the Attorney General’s

decision-making in this context.” Id. at 1293; see also 8 U.S.C. § 1103(g)(2).

While we indicated in a footnote we “may have jurisdiction over constitutional

claims related to the BIA’s decision not to exercise its sua sponte power,” we

recognized we had not yet decided the question and had no occasion to do so

because the petitioner in Lenis did not raise any constitutional claims. See Lenis,

525 F.3d at 1294 n.7.

      We lack jurisdiction to consider whether the BIA erred in refusing to sua

sponte reopen Cardenas-Guerrero’s proceedings. As in Lenis, Cardenas-


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Guerrero’s claim is not a constitutional claim “related to the BIA’s decision not to

exercise its sua sponte power.” See id. Rather, Cardenas-Guerrero’s ineffective

assistance of counsel claim, although nominally addressed to the BIA’s decision as

well as to the first IJ’s actions in the deportation proceedings, in substance relates

only to whether the circumstances that occurred in the deportation proceedings and

thereafter were sufficiently exceptional to warrant a sua sponte reopening.

                                 II. CONCLUSION

        Accordingly, we dismiss Cardenas-Guerrero’s petition in part and deny in

part.

        DISMISSED IN PART, DENIED IN PART.




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