[DO NOT PUBLISH]

IN THE UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT

________________________

No. 20-13389

Non-Argument Calendar

________________________

Agency No. A201-341-454

RENE ASTUL LOPEZ-PORTILLO, 

 Petitioner,

 versus

U.S. ATTORNEY GENERAL, 

 Respondent.

________________________

Petition for Review of a Decision of the

Board of Immigration Appeals

________________________

(May 6, 2021)

Before WILSON, JILL PRYOR, and LUCK, Circuit Judges.

PER CURIAM: 

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Rene Lopez-Portillo petitions for review of an August 2020 Board of 

Immigration Appeals (BIA) order. In that order, the BIA denied his motions to 

reconsider, reopen, and sua sponte reopen a March 2020 BIA decision denying 

cancellation of removal pursuant to the Immigration and Nationality Act (INA) § 

240A(b)(1), 8 U.S.C. § 1229b(b)(1). Lopez-Portillo argues that the BIA applied the 

wrong legal standards in denying him relief, engaged in impermissible factfinding, 

erred in deciding not to sua sponte reopen his case, denied him due process, and 

did not give his arguments or evidence reasoned consideration.

The INA limits our review of the petition. See INA § 242(a)(2)(B)(i), 8 

U.S.C. § 1252(a)(2)(B)(i); INA § 242(a)(2)(D), 8 U.S.C. § 1252(a)(2)(D). In part, 

Lopez-Portillo’s petition directly challenges the March 2020 order or otherwise 

implicates the discretionary-review bar, so we dismiss his petition to that extent. 

While Lopez-Portillo also raises legal and constitutional claims—which we can 

review—those claims do not have merit, so we otherwise deny the petition. 

I.

In May 2019, the Department of Homeland Security (DHS) served LopezPortillo, who is a native and citizen of El Salvador, with a notice to appear. DHS 

alleged that he had entered the United States without being admitted or paroled and 

charged him as removable pursuant to INA § 212(a)(6)(A)(i), 8 U.S.C. § 

1182(a)(6)(A)(i). Lopez-Portillo conceded removability and applied for 

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cancellation of removal.1 In relevant part, he stated in his application that his 

removal would cause a substantial hardship to his children, who are U.S. citizens.

At his hearing, Lopez-Portillo testified to the following: He has been in the 

United States since 2005 and is his family’s sole breadwinner. His nine-year-old 

daughter was born with a hip problem that affects her feet and ankles, causes her 

pain, and requires her to walk abnormally. His son was diagnosed with eczema at 

birth, which requires special care when bathing and the use of medicated soap and 

shampoo because his skin itches and bleeds. While Lopez-Portillo was detained, 

his son started acting out and his eczema worsened; both children were diagnosed 

with adjustment disorders and were struggling. His daughter understands Spanish 

and English, but his wife only speaks Spanish and his son does not speak Spanish, 

so his daughter often has to translate between them. He does not believe he would 

be able to care for his children’s needs if they went with him to El Salvador.

Lopez-Portillo’s sister and friend each testified about how the children had 

been affected by his detention and how he was needed at home with them. LopezPortillo presented evidence that women did not have equal pay or equal 

1 The Attorney General can cancel the removal of a non-lawful permanent resident who: (1) has 

been physically present in the United States for a continuous period of at least ten years 

immediately preceding the date of the application; (2) has been a person of good moral character 

during that period; (3) has not been convicted of an offense under INA §§ 1182(a)(2), 

1227(a)(2), or 1227(a)(3); and (4) establishes that his removal would result in exceptional and 

extremely unusual hardship to a qualifying relative, including a U.S. citizen child. INA § 

240A(b)(1), 8 U.S.C. § 1229b(b)(1).

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employment opportunities in El Salvador and that the country was dangerous. 

Also, he showed there was poor healthcare in El Salvador, particularly in 

comparison to the private health insurance he had obtained through his job in the 

United States. 

In an oral decision, the immigration judge (IJ) granted Lopez’s application 

for cancellation of removal. The IJ found substantial hardship based in part on the 

son’s medical condition and the fact that the son does not speak the same language 

as his mother. Also, because Lopez-Portillo is the sole breadwinner for the family, 

his removal could result in the children becoming public charges and facing 

exceptional and extremely unusual hardship. Alternatively, the IJ found that, if the 

children followed Lopez-Portillo to El Salvador, they would be living in a country 

where they would not understand the language, have no ties, and where their

family earnings would be significantly less. Thus, the IJ found that the situation 

justified the discretionary relief of cancellation.

DHS appealed to the BIA. Lopez-Portillo opposed the appeal and moved to 

admit new evidence, including a letter from the family’s therapist about the son 

and mother’s language barrier and a scholarly article about the mental health 

effects on immigrant children of having to learn two languages. 

In March 2020, the BIA sustained DHS’s appeal and vacated the IJ’s grant 

of cancellation. Reviewing the IJ’s factual findings for clear error and all other 

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issues de novo, the BIA determined that the “evidence does not establish that [the 

family’s] hardship is different from, or beyond, that which would normally be 

expected to result” from removal. Accordingly, the hardship did not rise to the 

level that warrants cancellation. The BIA ordered Lopez-Portillo removed. LopezPortillo did not petition for review of the March 2020 order. 

In April 2020, Lopez-Portillo moved for reconsideration of the March 2020 

order and requested a stay of deportation. In May 2020, he moved to reopen his 

case based on new and previously unavailable evidence. The new evidence 

included that his son had newly been diagnosed with a respiratory disorder, 

information about the effect of removal on children’s mental health, evidence of 

poor medical care in El Salvador, and more evidence about the language barrier 

between his son and his wife. He again requested that the BIA sua sponte reopen 

his case. 

The BIA denied Lopez-Portillo’s motions and request for a stay in an 

August 2020 decision. Lopez-Portillo filed this petition for review. 

II.

The INA guides our review. We generally have jurisdiction to review final 

orders of removal. See INA § 242(a)(l), (b)(9), 8 U.S.C. § 1252(a)(l), (b)(9); 

Jaggernauth v. U.S. Att’y Gen., 432 F.3d 1346, 1350 (11th Cir. 2005) (per curiam). 

A petitioner has 30 days from the date of the final order of removal to file a 

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petition for review with us. INA § 242(a)(1), (b)(1); 8 U.S.C. § 1252(a)(1), (b)(1). 

An order of removal becomes final when the BIA affirms it or when the time to 

appeal it expires, whichever is earlier. INA § 101(a)(47)(B), 8 U.S.C. 

§ 1101(a)(47)(B). The 30-day deadline to file a petition for review is mandatory, 

jurisdictional, and not subject to equitable tolling. Dakane v. U.S. Att’y Gen., 399 

F.3d 1269, 1272 n.3 (11th Cir. 2005) (per curiam). The deadline is not tolled by the 

filing of a motion to reopen or reconsider. Id. 

However, the INA strips us of jurisdiction to review discretionary judgments 

regarding petitions for cancellation of removal. INA § 242(a)(2)(B)(i), 8 U.S.C. 

§ 1252(a)(2)(B)(i). In these cases, we only have jurisdiction to review 

“constitutional claims or questions of law.” INA § 242(a)(2)(D), 8 U.S.C. 

§ 1252(a)(2)(D). Such a claim must be colorable; “a party may not dress up a claim 

with legal or constitutional clothing to invoke our jurisdiction.” Patel v. U.S. Att’y 

Gen., 971 F.3d 1258, 1272 (11th Cir. 2020) (en banc). In Patel, we established 

“that we are precluded from reviewing any judgment regarding the granting of 

relief under [8 U.S.C §§] 1182(h), 1182(i), 1229b, 1229c, or 1255 except to the 

extent that such review involves constitutional claims or questions of law.” Id. at 

1262 (alteration in original) (quotation marks omitted). 

When a motion to reopen implicates the denial of discretionary relief as to 

the underlying order, the jurisdictional bar from the INA applies and we cannot 

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review the denial of the motion to reopen. Guzman-Munoz v. U.S. Att’y Gen., 733 

F.3d 1311, 1314 (11th Cir. 2013) (per curiam). Similarly, if a petitioner did not 

raise any questions of law or constitutional issues, we lack jurisdiction to review 

BIA orders denying a motion to reconsider. Butalova v. U.S. Att’y Gen., 768 F.3d 

1179, 1184–85 (11th Cir. 2014) (per curiam).

While the BIA “may at any time reopen or reconsider a case in which it has 

rendered a decision on its own motion,” 8 C.F.R. § 1003.2(a), the decision to 

refuse to reopen removal proceedings sua sponte is “committed to agency 

discretion by law.” Lenis v. U.S. Att’y Gen., 525 F.3d 1291, 1293–94 (11th Cir. 

2008). Accordingly, such decisions are not reviewable. 

As an initial matter, we must decide the extent of our jurisdiction over 

Lopez-Portillo’s petition. He did not timely petition for review of the March 2020 

order, so we cannot review that order. See INA § 242(a)(1), (b)(1); 8 U.S.C. 

§ 1252(a)(1), (b)(1). As for the August 2020 order, because it involves challenges 

to the denial of the discretionary relief of cancellation of removal, we may only 

review Lopez-Portillo’s claims to the extent he has raised a colorable legal or 

constitutional claim. See Patel, 971 F.3d at 1272.2 We similarly lack jurisdiction 

2 Lopez-Portillo attempts to raise a due process claim but the claim is not colorable. Failing “to 

receive relief that is purely discretionary in nature does not amount to a deprivation of a liberty 

interest.” Alhuay v. U.S. Att’y Gen., 661 F.3d 534, 548 (11th Cir. 2011) (per curiam); see also

Scheerer v. U.S. Att’y Gen., 513 F.3d 1244, 1253 (11th Cir. 2008) (the denial of a motion to 

reconsider and motion to reopen are discretionary decisions that cannot support a due process 

claim). Accordingly, this claim fails.

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over the BIA’s decision not to sua sponte reopen his case. Thus, we dismiss LopezPortillo’s claims over which we lack jurisdiction.

III.

Nevertheless, Lopez-Portillo raised two claims that we may review: 

(1) whether the BIA applied incorrect legal standards in its decision to deny his 

motions and (2) whether the BIA failed to give reasoned consideration to his 

arguments and evidence. These are both questions of law. Jeune v. U.S. Att’y. 

Gen., 810 F.3d 792, 799 (11th Cir. 2016); Bing Quan Lin v. U.S. Att’y Gen., 881 

F.3d 860, 872 (11th Cir. 2018). Our review is limited to these arguments; we 

cannot review the underlying merits of whether Lopez-Portillo’s motions should 

have been granted.

One may file a motion to reconsider the prior decision or to reopen 

proceedings after entry of a final order of removal. INA § 240(c)(6), (7), 8 U.S.C. 

§ 1229a(c)(6), (7). The BIA will typically not grant a motion to reconsider based 

on a legal argument that was previously available, but reconsideration may be 

warranted based on a previously-raised argument that the BIA did not address in its 

prior decision. In re O-S-G-, 24 I. & N. Dec. 56, 58 (BIA 2006).

A “motion to reopen shall state the new facts that will be proven at a hearing 

to be held if the motion is granted, and shall be supported by affidavits or other 

evidentiary material.” INA § 240(c)(7)(B); 8 U.S.C. § 1229a(c)(7)(B). Reopening 

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“may be warranted only where the movant presents evidence that is new, material, 

and unavailable when the removal order was entered.” Lin, 881 F.3d at 872 

(emphasis omitted). The movant “bears a heavy burden” in showing the evidence 

is material and must show that “the new evidence would likely change the result.” 

Jiang v. U.S. Att’y Gen., 568 F.3d 1252, 1256–57 (11th Cir. 2009).

When reviewing an IJ’s decision, the BIA cannot engage in factfinding; it 

reviews an IJ’s findings of fact only for clear error. 8 C.F.R. § 1003.1(d)(3)(i). But 

the BIA reviews “questions of law, discretion, and judgment and all other issues” 

de novo. Id. § 1003.1(d)(3)(ii). Accordingly, the BIA can consider de novo

whether the IJ’s facts qualify the petitioner for relief. Zhou Hua Zhu v. U.S. Att’y 

Gen., 703 F.3d 1303, 1312 (11th Cir. 2013).

In reviewing a petitioner’s appeal, the BIA must give reasoned consideration 

to the arguments and evidence, but need not individually address each argument or 

piece of evidence. Perez-Guerrero v. U.S. Att’y Gen., 717 F.3d 1224, 1232 (11th 

Cir. 2013) (per curiam). When reviewing for reasoned consideration, “we inquire 

only whether the [BIA] considered the issues raised and announced its decision in 

terms sufficient to enable a reviewing court to” know they were considered. Id. 

(quotation marks omitted) (alterations adopted). To meet this burden, the BIA must

discuss “highly relevant” evidence. Ali v. U.S. Att’y Gen., 931 F.3d 1327, 1334 

(11th Cir. 2019). The BIA fails to give reasoned consideration when it “misstates 

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the contents of the record, fails to adequately explain its rejection of logical 

conclusions, or provides justifications for its decision which are unreasonable.” 

Lin, 881 F.3d at 874. 

The BIA did not err here. First, in its August 2020 order, the BIA cited and 

applied the correct standards of review for analyzing motions to reconsider and 

reopen. The BIA did not engage in impermissible factfinding in the August 2020 

order because it discussed the facts as found by the IJ and why those facts 

collectively were not enough to warrant relief. The BIA did not make any further 

factual findings itself. In doing so, the BIA properly recognized its ability to de 

novo determine whether the IJ’s facts satisfy the legal standard. Whether the BIA 

engaged in improper factfinding in its March 2020 order is not reviewable here

because Lopez-Portillo did not appeal that order. 

As for the evidence Lopez-Portillo provided with the motions, the BIA

properly recognized that some of the “new” evidence was not new (it was already 

in the record). Otherwise, Lopez-Portillo failed to explain why the evidence was 

new or previously unavailable, so the BIA did not err in finding it was not required 

to consider it. See Lin, 881 F.3d at 873. As for the new medical evidence, the BIA 

considered it, but found it insufficient to justify reopening the case. We lack 

jurisdiction to review the underlying merits of that conclusion because it implicates 

discretionary relief. See Butalova, 768 F.3d at 1184.

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Second, the BIA gave reasoned consideration to Lopez-Portillo’s arguments. 

The BIA was not required to individually mention each argument or piece of 

evidence submitted. The decision shows that the BIA considered his claims: it 

cited precedential decisions, demonstrated familiarity with the record, and 

compared the facts of other cases to the facts of Lopez-Portillo’s case to reach its 

conclusions. The BIA properly recognized that Lopez-Portillo raised the same 

arguments in the motion to reconsider that he had already raised in his appellate 

brief; it was not required to grant his motion when he failed to raise a new 

argument. The BIA addressed and rejected Lopez-Portillo’s new arguments, 

including whether they had engaged in impermissible factfinding. The BIA also 

considered his new evidence, finding that some of it was not new and the rest was 

insufficient to change their determination. The BIA did not mischaracterize his

arguments, misapply precedent, or fail to adequately explain the decision.

To the extent that we can review Lopez-Portillo’s petition, we are unable to 

grant relief because the BIA did not err. We therefore deny Lopez-Portillo’s claims 

that were not dismissed as jurisdictionally barred. 

DISMISSED IN PART AND DENIED IN PART.

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