[ DO NOT PUBLISH]

IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT

________________________ No. 20

- 12495 Non

- Argument Calendar

________________________

Agency No. A070

- 116

- 256
MARIA DINORA PORTILLO

- MELGAR , Petitioner

- Appellant ,

versus U.S. ATTORNEY GENERAL , Respondent

- Appellee

.

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

________________________ (August 9, 2021) Before BRANCH, GRANT , and BRASHER , Circuit Judges.
PER CURIAM : Maria Portillo

- Melgar seeks review of a decision by the Board of Immigration Appeals denying her motion for sua sponte reopening. Upon consideration, we dismiss her petition for a lack of jurisdiction.

USCA11 Case: 20-12495 Date Filed: 08/09/2021 Page: 1 of 62 I. Portillo

- Melgar is a native and citizen of El Salvador who entered the United States without inspection in 1991. She was charged for that conduct and placed in deportation proceedings. She later applied for asylum in 1993, and the immigration judge presidi ng over her case set a hearin g for the summer of 1995

. But Portillo

Melgar failed to appear at that hearing, so the immigration judge issued a deportation order without her present. In 2019, Portillo

- Melgar filed a motion to reopen her deportation proceedi ngs. In her motion, she asserted that her life circumstances had changed since 1995. Specifically, she asserted that she had been granted Temporary Protected Status and married an American citizen who had filed a visa petition on her behalf that was approved a year before. She therefore requested that the immigration judge exercise

“ sua sponte authority to reopen” her case and remand or terminate her deportation proceedin gs. The immigration judge denied her motion. It noted that “ sua sponte reopening is limited to exceptional circumstances , ” found that the case before it did not involve such circumstances , and concluded that sua sponte reopening was unwarranted

. Portillo

- M elgar appealed the immigration judge’s denial of her motion to the BIA, which affirmed the immigration judge’s opinion without a written opinion. Portillo

Melgar then petitioned this Court for review of the BIA’s decision.

USCA11 Case: 20-12495 Date Filed: 08/09/2021 Page: 2 of 63 II.

“ Federal courts are obligated to inquire into subject

- matter jurisdiction sua sponte whenever it may be lacking.” Bing Quan Lin v. U.S. Att’y Gen. , 881 F.3d 860, 866 (11th Cir. 2018) (internal quotation marks and citation omitted ). We review our subject

- matter jurisdiction to review a petition from the BIA de novo

. See id.

“ When the BIA summarily affirms the [immigration judge’s] decision without an opinion, [that] decision becomes the final removal order subject to review. ” Sepulved a v. U.S. Att’y Gen. , 401 F.3d 1226, 1230 (11th Cir. 2005)

. III. Portillo

- Melgar argues that the BIA erred by failing to meaningfully address an equitable tolling argument that would have enabled her to file a motion for statutory reopening. In response, t he Attorney General argues that we lack jurisdiction to review her petition because it challenges a denial of a motion for sua sponte reopening . We agree with the Attorney General. Under the Immigration and Nationality Act, “ an alien may file one ‘ statutory ’ motion to reopen her removal proceedings, and, generally, the motion must be filed within 90 days of the date of entry of the administratively final order of removal. ” Butka v. U.S. Att’y Gen. , 827 F.3d 1278, 1283 (11th Ci r. 2016) (citing 8 U.S.C. § 1229a(c)(7)(A), (C) ). “ The 90

- day deadline is subject to equitable tolling ,” and “[t] his Court has jurisdiction to review [a] denial of a petitioner ’s motion for

USCA11 Case: 20-12495 Date Filed: 08/09/2021 Page: 3 of 64 statutory reopening. ” Id. (citations omitted). Additionally, both an immigration judge and the BIA ha ve “ the authority to reopen removal proceedings sua sponte at any time ,” and “[a] petitioner can file a written motion ” requesting an immigration
court “ to exercise its sua sponte authority. ” Id. (citing 8 C.F.R. § 1003.2(a) ) ; 8 C.F.R. § 1003.2 3(b)

. However, w e lack jurisdiction to review a decision denying a petitioner ’ s motion for sua sponte reopening , with a possible exception for constitutional claims. See i d. at 1283 , 1285

– 86 (citing Lenis v. U.S. Att’y Gen. , 52 5 F.3d 1291, 129 2, 12 94 & n.7 (11th Cir. 2008)). The reason we lack jurisdiction is that , under the Administrative Procedure Act, “ judicial review is not available when agency action is committed to agency discretion by law”

— a kind of agency action that includes the sua sponte reopening of cases. Id. (internal quotation marks omitted) (quoting Lenis , 525 F.3d at 1293). Portillo

- Melgar makes two arguments in her briefing for why we have jurisdiction to review her petition, but neither of them succeeds. First, she argues that the APA does not divest us of jurisdiction to review her petition and cites Marcello v. Bonds , 349 U.S. 302 (1955), and Ardestani v. I.N.S. , 502 U.S. 129 (1991), in support. But Marcello and Ardestani concerned the extent to which the APA governed immigration proceedings, not the extent to which such proceedings can be reviewed by a federal court. See Marcello , 349 U.S. at 303

– 04 (noting that the petitioner challenged the validity of his depor tation order in part

USCA11 Case: 20-12495 Date Filed: 08/09/2021 Page: 4 of 65 because his hearing allegedly failed to comply with the APA); Ardestani , 502 U.S. at 134 (“ Applying our precedent in Marcello, it is clear that Ardestani ’ s deportation proceeding was not subject to the APA [.]”). Therefore, neither prec edent conflicts with our clear and controlling holdings in Lenis and Butka

. Second, she argues that by codifying motions to reopen, Congress intended to divest immigration courts of their discretionary authority to reopen. She then reasons that the regulat ions in 8 C.F.R. § § 1003.2 and 1003.23 that provid e discretionary authority to reopen fail the Chevron test and so are without legal force. But she fails to cite any authorities showing that Congress had a clear intention to divest discretionary authority from immigration courts. Moreover, the Supreme Court has expressly held “ that Congress left the matter where it was [before its most recent cod ification regarding motions to reopen] : The BIA has broad discretion, conferred by the Attorney General, to grant or deny a motion to reopen [

. ] ” Kucana v. Holder , 558 U.S. 233, 250 (2010) (internal quotation marks omitted) . Hence, Portillo

Melgar’s second argument is meritless, and we consequently lack jurisdiction to review her petition. In short, Portillo

- Melgar requested that the immigration judge exercise sua sponte authority to reopen her case. Because she makes no constitutional claims, we lack jurisd iction to review her petition.

USCA11 Case: 20-12495 Date Filed: 08/09/2021 Page: 5 of 66 IV. For the reasons stated above, we DISMISS Portillo

- Melgar ’s petition because

we lack jurisdiction

.

USCA11 Case: 20-12495 Date Filed: 08/09/2021 Page: 6 of 6