[DO NOT PUBLISH]

IN THE UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT

________________________

No. 18-14485

Non-Argument Calendar

________________________

Agency No. A091-151-653

MARIA CLAUDIA DIAZ VEGA, 

 Petitioner,

versus

U.S. ATTORNEY GENERAL, 

 Respondent.

________________________

Petition for Review of a Decision of the

Board of Immigration Appeals

________________________

(June 28, 2019)

Before MARTIN, NEWSOM, and ANDERSON, Circuit Judges.

PER CURIAM: 

Maria Diaz Vega petitions for review of the Board of Immigration Appeals’ 

(“BIA”) denial of her motion to reopen removal proceedings, 8 C.F.R. § 1003.2(c), 

Case: 18-14485 Date Filed: 06/28/2019 Page: 1 of 5 
2

filed 16 years after her final order of removal. She argues that the BIA failed to 

meaningfully address her claims for statutory reopening with equitable tolling 

because it failed to meaningfully consider her claim of due diligence in regard to 

her request for the BIA to equitably toll the 90-day deadline for submitting a 

motion to reopen. 

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

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. Although decisions not to 

reopen under 8 C.F.R. § 1003.2 are reviewed for an abuse of discretion, the 

decision not to reopen sua sponte is committed to agency discretion by law, and 

this discretion is so wide and lacking in a meaningful standard against which to 

judge it that it is non-reviewable. Lenis v. U.S. Att’y Gen., 525 F.3d 1291, 1293-94 

(11th Cir. 2008). Where a petitioner challenges the BIA’s nondiscretionary 

grounds for denying a motion to reopen, we must affirm if the BIA’s decision is 

based on reasoned consideration and shows that the BIA made adequate findings to 

support the outcome. Lin v. U.S. Att’y Gen., 881 F.3d 860, 871-72 (11th Cir. 

2018). We review de novo claims of legal error, including claims that the BIA did 

not provide reasoned consideration of its decision. Id. at 872. The usual rules 

regarding proper presentation of issues for purposes of waiver and abandonment 

Case: 18-14485 Date Filed: 06/28/2019 Page: 2 of 5 
3

also apply to petitions to review. See Sepulveda v. U.S. Att’y Gen., 401 F.3d 1226, 

1228 n.2 (11th Cir. 2005) (providing that issues not raised on appeal are deemed 

abandoned).

In evaluating a motion to reopen, the BIA must make reasoned consideration 

of a movant’s claims. Lin, 881 F.3d at 874. We do not look to whether the 

agency’s decision is supported by substantial evidence, but instead look to see 

whether the BIA “has considered the issues raised and announced its decision in 

terms sufficient to enable a reviewing court to perceive that it has heard and 

thought and not merely reacted.” Jeune v. U.S. Att’y Gen., 810 F.3d 792, 803 (11th 

Cir. 2016) (quotation marks and alterations omitted). However, the BIA need not 

specifically address each claim or piece of evidence presented. Id. Where the BIA 

has not given reasoned consideration of a question or made adequate findings, we

remand for further proceedings. Lin, 881 F.3d at 874. 

Under the Immigration and Nationality Act (“INA”), an alien may file one 

statutory motion to reopen her removal proceedings, and the motion must be filed 

within 90 days of the date of entry of the administratively final order of removal. 

INA § 240(c)(7)(A), (C)(i), 8 U.S.C. § 1229a(c)(7)(A), (C)(i). The 90-day 

deadline is subject to equitable tolling. Avila-Santoyo v. U.S. Att’y Gen., 713 F.3d 

1357, 1362-65 (11th Cir. 2013). Typically, equitable tolling of a time deadline 

Case: 18-14485 Date Filed: 06/28/2019 Page: 3 of 5 
4

requires a showing that the litigant: (1) has been pursuing her rights diligently and 

(2) some extraordinary circumstance stood in her way. Lin, 881 F.3d at 872. 

The BIA also has the authority to reopen removal proceedings sua sponte at 

any time. 8 C.F.R. § 1003.2(a). The BIA will only exercise its discretion for sua 

sponte reopening in exceptional circumstances. Butka v. U.S. Att’y Gen., 827 F.3d 

1278, 1283 (11th Cir. 2016), cert. denied, 138 S. Ct. 299 (2017). In the context of 

a motion to reopen removal proceedings, there is no significant difference between 

the “extraordinary” circumstances required to justify equitable tolling and 

“exceptional circumstances” defined in the INA regulations. Avila-Santoyo, 713 

F.3d at 1363 n.5. “Exceptional circumstances” are “circumstances (such as battery 

or extreme cruelty to the alien or any child or parent of the alien, serious illness of 

the alien, or serious illness or death of the spouse, child, or parent of the alien, but 

not including less compelling circumstances) beyond the control of the alien.” 

INA § 240(e)(1), 8 U.S.C. § 1229a(e)(1). 

As an initial matter, Diaz Vega did not challenge the BIA’s determination 

that sua sponte reopening of the proceedings was unwarranted. Accordingly, she 

abandoned any such challenges. See Sepulveda, 401 F.3d at 1228 n.2. In any 

event, such a challenge is not reviewable. See Lenis, 525 F.3d at 1293-94. 

The district court gave reasoned consideration to Diaz Vega’s arguments 

that equitable tolling applied, but properly concluded that her recently-acquired ICase: 18-14485 Date Filed: 06/28/2019 Page: 4 of 5 
5

130 beneficiary status, which would allow her to adjust status to that of lawful 

permanent resident under certain circumstances, was not an extraordinary 

circumstance warranting equitable tolling. See Gyamfi v. Whitaker, 913 F.3d 168, 

175 (1st Cir. 2019)(holding that the existence of new evidence of I-130 beneficiary 

status is not an extraordinary circumstance warranting application of equitable 

tolling of the 90-day time limit for filing a motion to open, and noting that an 

unforeseeable future occurrence cannot logically be viewed as impeding a 

movant’s ability to file within the required 90-day time limit); 8 U.S.C. 

§ 1229a(e)(1). Although the BIA did not address her arguments about diligently 

pursuing her rights, it was not required to do so because it determined that she had 

not shown extraordinary circumstances. See Lin, 881 F.3d at 872. Accordingly, 

the BIA did not abuse its discretion in denying her untimely motion to reopen, and 

her petition for review is denied. 

PETITION DENIED.

Case: 18-14485 Date Filed: 06/28/2019 Page: 5 of 5