[DO NOT PUBLISH]

IN THE UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT

________________________

No. 18-10185

Non-Argument Calendar

________________________

Agency No. A021-148-528

IVAN ERIC LINTON, 

 Petitioner,

 versus

U.S. ATTORNEY GENERAL, 

 Respondent.

________________________

Petition for Review of a Decision of the

Board of Immigration Appeals

________________________

(November 27, 2018)

Before MARTIN, ROSENBAUM, and FAY, Circuit Judges.

PER CURIAM:

Case: 18-10185 Date Filed: 11/27/2018 Page: 1 of 8 
2

Ivan Eric Linton petitions this Court for review of the Board of Immigration 

Appeals’ (BIA) denials of his fifth and seventh1 motions to reopen his removal 

proceedings. After careful review, we dismiss the petition.

I.

Linton, a native and citizen of Jamaica, came to the United States in 1979 

and became a lawful permanent resident that year. In 1983, Linton pled guilty to 

possession of marijuana, for which he was sentenced to five years of probation. 

Six years later, Linton was convicted at trial of conspiracy to possess cocaine and 

attempted trafficking in cocaine. He was again sentenced to five years of 

probation. In light of these convictions, in 2005 the Department of Homeland 

Security served Linton with a Notice to Appear, which charged him with 

removability under the Immigration and Nationality Act (INA). See 8 U.S.C.

§ 1227(a)(2)(A)(iii) (“Any alien who is convicted of an aggravated felony at any 

time after admission is deportable.”); id. § 1227(a)(2)(B)(i) (same for certain 

controlled substance violations). At his removal hearing, Linton admitted the 

 

1 Linton styled what we are calling his seventh motion as a “motion to accept 

supplemental evidence out of time and to remand.” The BIA denied the motion, whether treated

as a supplement requesting reconsideration of Linton’s already-rejected sixth motion to reopen or

as a seventh motion to reopen. To avoid confusion, we refer to it as Linton’s seventh motion to 

reopen.

Case: 18-10185 Date Filed: 11/27/2018 Page: 2 of 8 
3

allegations in the Notice to Appear and conceded removability. However, he 

applied for a waiver of deportation under former INA § 212(c).2

 See 8 U.S.C. § 

1182(c) (1994). The Immigration Judge deemed Linton ineligible for a § 212(c) 

waiver and denied his application. The BIA later upheld the denial, as did this 

Court. On April 6, 2011, Linton was removed to Jamaica where he still lives.

Linton filed a series of motions to reopen his removal proceedings, asserting 

his eligibility for § 212(c) relief. Linton also submitted an “application for asylum 

and withholding of removal,” which the BIA treated as a motion to reopen and 

labelled as Linton’s fifth such motion. The BIA denied each of Linton’s motions.

In June 2015, Linton petitioned this Court for review of the BIA’s denials of 

his fifth and sixth motions to reopen. See Linton v. U.S. Att’y Gen., 680 F. App’x 

848, 851 (11th Cir. 2017) (per curiam) (unpublished). Our Court concluded it

lacked jurisdiction to review the BIA’s denial of Linton’s sixth motion. See id. at 

851–52. However, we found jurisdiction to review the BIA’s denial of Linton’s 

fifth motion. See id. at 852. Agreeing with Linton that the BIA had erred by 

denying his fifth motion, this Court granted Linton’s petition for review as to that 

motion and remanded the case to the BIA for further consideration. Id. at 852–53.

 

2 In September 1996, the Illegal Immigration Reform and Immigrant Responsibility Act 

of 1996 (IIRIRA) repealed § 212(c), which allowed deportable aliens to seek a waiver of 

inadmissibility. See Pub. L. No. 104–208, § 304(b), 110 Stat. 3009–597.

Case: 18-10185 Date Filed: 11/27/2018 Page: 3 of 8 
4

After the remand of Linton’s case to the BIA, Linton filed a seventh motion 

to reopen. The BIA again denied Linton’s fifth motion to reopen and also denied 

Linton’s seventh motion to reopen.

Before assessing Linton’s motions, the BIA explained that motions to reopen 

are disfavored and a moving party has “the heavy burden of demonstrating that the 

new evidence offered would likely change the result in the case.” The BIA then 

specified its grounds for denying Linton’s motions. Regarding the fifth motion—

the one Linton styled as an application for asylum and withholding of removal—

the BIA explained that: (1) the motion was untimely and number-barred; (2) 

Linton did not demonstrate his eligibility for asylum and withholding of removal 

because he failed to submit sufficient evidence showing changed country 

conditions or circumstances; (3) Linton failed to demonstrate prima facie eligibility 

for asylum and withholding; and (4) Linton failed to demonstrate prima facie 

eligibility for refugee status and protection under the Convention Against Torture. 

Regarding Linton’s seventh motion to reopen, the BIA declined to exercise its sua 

sponte authority to reopen proceedings and also declared the motion untimely and 

number-barred.

Linton timely petitioned this Court for review of the BIA’s denials of his 

fifth and seventh motions to reopen. The government contends we lack 

jurisdiction to review Linton’s petition. 

Case: 18-10185 Date Filed: 11/27/2018 Page: 4 of 8 
5

II.

We review the BIA’s denial of a motion to reopen for abuse of discretion. 

Lonyem v. U.S. Att’y Gen., 352 F.3d 1338, 1340 (11th Cir. 2003) (per curiam). 

We review de novo whether we have subject-matter jurisdiction over the denial of 

a motion to reopen. Arias v. U.S. Att’y Gen., 482 F.3d 1281, 1283 (11th Cir. 

2007) (per curiam). 

In general, this Court lacks jurisdiction to review a final order of removal or 

the denial of a motion to reopen where, as here, the person is removable because he 

committed an aggravated felony. See 8 U.S.C. § 1252(a)(2)(C); Patel v. U.S. Att’y

Gen., 334 F.3d 1259, 1262 (11th Cir. 2003) (holding that motions to reopen are 

subject to the jurisdiction-stripping provision of § 1252(a)(2)(C)). Under the 

REAL ID Act of 2005, though, we ordinarily retain jurisdiction to address 

constitutional claims and questions of law. See 8 U.S.C. § 1252(a)(2)(D); Ali v. 

U.S. Att’y Gen., 443 F.3d 804, 809 (11th Cir. 2006) (per curiam). But even when 

a petition for review raises a constitutional claim or question of law, we lack 

jurisdiction if the BIA denied the motion to reopen based on an alternative, 

independently sufficient ground that is either unchallenged or unreviewable by this 

Court. See Mustafic v. U.S. Att’y Gen., 591 F. App’x 726, 731 (11th Cir. 2014) 

(per curiam) (unpublished) (“[W]e have explained that we do not have jurisdiction 

to review a question of law, where doing so would result in an advisory opinion.”); 

Case: 18-10185 Date Filed: 11/27/2018 Page: 5 of 8 
6

cf., e.g., Malu v. U.S. Atty Gen., 764 F.3d 1282, 1290 (11th Cir. 2014) (“Although 

ordinarily we would have jurisdiction to review whether Congolese wives viewed 

as property constitute a particular social group because that is a question of law . . . 

we cannot do so here lest we provide an advisory opinion.” (citations omitted)).

A.

We now turn to the BIA’s denial of Linton’s fifth motion to reopen. Relying 

on the BIA’s decision in Matter of L-O-G-, 21 I. & N. Dec. 413 (BIA 1996), 

Linton argues the BIA erred by requiring him to satisfy the “heavy burden” 

standard when it should have applied a lesser standard. See id. at 420 (holding that 

“[w]here an alien is seeking previously unavailable relief and has not had an 

opportunity to present her application before the Immigration Judge, the Board will 

look to whether there is sufficient evidence proffered to indicate a reasonable

likelihood of success on the merits, so as to make it worthwhile to develop the 

issues further at a full evidentiary hearing”). Linton also contends the BIA 

misunderstood the basis for his application for withholding of removal and asylum 

and erroneously assessed Linton’s evidence as a result.

Linton’s challenge to the BIA’s application of the “heavy burden” standard 

is a question of law over which this Court would ordinarily have jurisdiction. See

Jeune v. U.S. Att’y Gen., 810 F.3d 792, 799 (11th Cir. 2016) (“An argument that 

the agency applied the wrong legal standard in making a determination constitutes 

Case: 18-10185 Date Filed: 11/27/2018 Page: 6 of 8 
7

a legal question.”). However, the BIA denied Linton’s motion on other 

independent and sufficient grounds. Namely, the BIA grounded its denial in 

factual determinations that Linton’s motion was untimely and Linton had not 

sufficiently shown changed country conditions. See Pepaj v. Mukasey, 509 F.3d 

725, 727–28 (6th Cir. 2007) (concluding the court had no jurisdiction over “factual 

determination” of whether country conditions have changed); Chacon-Botero v. 

U.S. Att’y Gen., 427 F.3d 954, 957 (11th Cir. 2005) (per curiam) (“The timeliness 

of an asylum application is not a constitutional claim or question of law covered by 

the Real ID Act’s changes.”). The BIA also based its denial on other primarily 

factual determinations that Linton had failed to demonstrate prima facie eligibility 

for asylum, withholding of removal, and relief under the Convention Against 

Torture. Cf. Sepulveda v. U.S. Att’y Gen., 401 F.3d 1226, 1231–33 (11th Cir. 

2005) (per curiam) (reviewing the BIA’s asylum and withholding of removal 

decisions under the “substantial evidence” test typically reserved for factual 

determinations). Therefore, this Court lacks jurisdiction to review the BIA’s denial 

of Linton’s fifth motion to reopen.

B.

Finally, we address the BIA’s denial of Linton’s seventh motion to reopen. 

Linton argues the BIA erred in subjecting his motion to the time and numerical 

limitations of a motion to reopen and should have instead treated the motion as a 

Case: 18-10185 Date Filed: 11/27/2018 Page: 7 of 8 
8

request to remand. Linton also contends the BIA improperly failed to treat his 

motion as unopposed and erred by failing to follow the adjudication standards 

described in the BIA’s Practice Manual. Because the BIA denied Linton’s seventh 

motion on the independent and sufficient ground that it would not exercise its sua 

sponte discretionary authority to reopen proceedings, this Court lacks jurisdiction 

over the BIA’s denial. See Lenis v. U.S. Att’y Gen., 525 F.3d 1291, 1294 (11th 

Cir. 2008) (holding this Court lacks jurisdiction to review a BIA decision denying 

a petitioner’s motion for sua sponte reopening); see also Butka v. U.S. Att’y Gen., 

827 F.3d 1278, 1285–86 (11th Cir. 2016) (“Lenis . . . forecloses Butka’s argument 

that this Court could review the legal issues presented in her motion to reopen, 

while declining to reach the question of whether the BIA should have exercised its 

discretionary power to grant sua sponte reopening.”).

PETITION DISMISSED.

Case: 18-10185 Date Filed: 11/27/2018 Page: 8 of 8