[DO NOT PUBLISH]

IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT

________________________ No. 19

- 10285 Non

- Argument Calendar

________________________

Agency No. A070

- 896

- 774

SAGAR RISHAN, Petitioner,

versus U.S. ATTORNEY GENERAL, Respondent.

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

________________________ (October 30, 2019)
Before TJOFLAT , MARCUS, and ROSENBAUM , Circuit Judges.
PER CURIAM:

Case: 19-10285 Date Filed: 10/30/2019 Page: 1 of 42 I. Rishan Sagar , 1 a native and citizen of Trinidad and Tobago, petitions for review of the Board of Immigration Appeals’ (“ BIA ”) decision affirming the
denial of his second motion to reopen his removal proceedings . The BIA found
that t his second petition was untimely and impermissibly successive because he did not prove that country conditions had materially changed in his home country of Trinidad and Tobago since his initial removal hearing in 2001. We dismiss the petition b ecause (1) we do not have jurisdiction to revi ew the BIA’s factual determinations regarding the timeliness and sufficiency of proof of changed country conditions, and (2) Sagar’s Eighth Amendment claim is meritle ss.
II. This appeal primarily involves two statutes. These statutes, w hen taken together, make the outcome of th is case as simple as basic arithmetic.
The first statute involved is 8 U.S.C. § 1252, 2 which restricts our jurisdiction
when an alie n , such as Sagar, is removable from the country because he committed an aggravated felony. Linton v. U.S. Att’y Gen. , 756 F. App’x 913, 916 (11th Cir. 2018) (“[T]his Court lacks jurisdiction to review

. . . the denial of a motion to

1 The case caption lists appellant’s name as Sagar Rishan because the administrative record lists his name as Sagar Rishan. In his brief, appellant r efers to himself as Rishan Sagar, which we assume is his correct name. 2 The statute provi des: “[N]o court shall have jurisdiction to review any final order of removal against an alien who is removable by reason of having committed a criminal offense covered in [8 U.S.C. § 1227(a)(2)(A)(iii)]”

— i.e., aggravated felonies. 8 U.S.C. § 1252(a)(2)(C).

Case: 19-10285 Date Filed: 10/30/2019 Page: 2 of 43 reopen where, as here, the person is removable because he committed an aggravated felony.”); see Patel v. U.S. Att’y Gen. , 334 F.3d 1259, 1262 (11th Cir. 2003) (finding that motions to reopen are subject to § 1252(a)(2)(C)’s jurisdiction stripping provision). In such cases, we only have jurisdiction to review questions of law and constitutional challenges , 8 U.S.C. § 1252(a)(2)(D) , meaning that we do

not have jurisdiction to review factual determinations.
The second statute involved is 8 U.S.C. § 1229a, which as applied here only
allows an alien to file untimely and successive motions if he proves that the conditions in his home country have materially changed since his original removal
and that he could not previously have prove n such a change. 3
The determinations of (1) the timeliness of a motion to reopen , and (2) the sufficiency of the evidence of previously unpresentable, materially changed country conditions, are factual. See Linton , 756 F. App’x at 916 (“[T]he BIA denied [petitioner’s] motion on

. . . independent and sufficient grounds. Namely, the BIA grounded its denial in factual determinations that [petitioner’s] motion was untimely and [that petitioner] had not sufficiently shown changed country

3 Ordinarily, “[a]n alien may file one motion to reopen proceedings” within 90 days of the final administrative order. 8 U.S.C. §§ 1229a(c)(7)(A), (C ) (i) (emphasis added). But an alien can file additional motions without time constraints if he seeks reopening to apply for withholding of removal under the Convention Against Torture. 8 U.S.C. § 1229a(c)(7)(C)(ii); 8 C.F.R. § 1003.23(b)(4)(i). Such mot ions must show evidence of changed country conditions in the home country that are material and could not have been produced at the previous hearing. 8 U.S.C. § 1229a(c)(7)(C)(ii); 8 C.F.R. § 1003.23(b)(4)(i).

Case: 19-10285 Date Filed: 10/30/2019 Page: 3 of 44 conditions.”) (emphasis added); see also Pepaj v. Mu kasey , 509 F.3d 725, 727 (6th Cir. 2007) (concluding that the Court had no appellate jurisdiction over the factual determination of whether petitioner had demonstrated changed country conditions). Therefore, because we lack jurisdiction over factual deter minations here because Sagar committed an aggravated felony, we do not have jurisdiction to review the
BIA’s dismissal of Sagar’s petition as untimely or insufficient

. However, we do have jurisdiction over Sagar’s constitutional claims. 8 U.S.C. § 1252(a) (2)(D). Sagar argues that his removal violates the Eighth Amendment’s prohibition of cruel and unusual punishment. He is incorrect. “The cruel and unusual punishment clause only protects individuals who
have been convicted of crimes.

. . . Because immig ration proceedings are not criminal and do not constitute punishment, [ petitioner’s ] argument that his removal to [ his home country ] will violate the Eighth Amendment lacks merit.” Cadet v. Bulger , 377 F.3d 1173, 1196 (11th Cir. 2004). Accordingly, Sagar is not entitled
to relief.
PETITION DISMISSED. Case: 19-10285 Date Filed: 10/30/2019 Page: 4 of 4