[DO NOT PUBLISH]

IN THE UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT

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No. 18-11133

Non-Argument Calendar

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Agency No. A208-690-443

BEREKET OKBAZGHI GEBRENIGUS, 

 Petitioner,

 versus

U.S. ATTORNEY GENERAL, 

 Respondent.

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Petition for Review of a Decision of the

Board of Immigration Appeals

________________________

(April 30, 2019)

Before MARCUS, BRANCH, and ANDERSON, Circuit Judges.

PER CURIAM: 

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Bereket Okbazghi Gebrenigus petitions for review of the order of the Board 

of Immigration Appeals (“BIA”) affirming the Immigration Judge’s (“IJ”) denial 

of his second motion to reopen. Gebrenigus argues that (1) the BIA abused its 

discretion by denying his motion to reopen as time- and number-barred because he 

presented evidence of changed country conditions in Eritrea; (2) the BIA 

committed legal and constitutional error by failing to consider record evidence 

when deciding whether to reopen his case under its sua sponte authority; and 

(3) we should remand to the BIA with instructions to consider additional evidence 

that became available after the BIA issued its decision. 

I.

We review the BIA’s decision as the final judgment, unless the BIA 

expressly adopted the IJ’s decision. Ruiz v. Gonzales, 479 F.3d 762, 765 (11th Cir. 

2007). When the BIA explicitly agrees with the findings of the IJ, we will review 

the decision of both the BIA and the IJ as to those issues. Ayala v. U.S. Att’y Gen., 

605 F.3d 941, 948 (11th Cir. 2010). We review the BIA’s denial of a motion to 

reopen removal proceedings for an 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. 

Generally, an alien may only file one motion to reopen, which must be filed 

within 90 days of the date of the final removal order. See Immigration and 

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Nationality Act (“INA”) § 240(c)(7)(A), (C)(i), 8 U.S.C. § 1229a(c)(7)(A), (C)(i); 

8 C.F.R. § 1003.2(c)(2). However, the time- and number-bars do not apply if a 

petitioner seeks reopening of his asylum proceedings based on changed country 

conditions in the removal country. 8 C.F.R. § 1003.2(c)(3)(ii). Evidence of 

changed country conditions must be material and must have been unavailable or 

undiscoverable at the time of the previous hearing. Id. New evidence is material if 

the petitioner demonstrates that, if the proceedings were opened, the evidence 

would likely change the result in the case. Jiang v. U.S. Att’y Gen., 568 F.3d 1252, 

1256-57 (11th Cir. 2009). In Jiang, we held that the BIA and IJ abused their 

discretion by denying Jiang’s motion to reopen because although China’s coercive 

family planning policies had been in effect since 1979, she presented new evidence 

that family planning laws were being more stringently enforced in her hometown. 

Id. at 1258.

Here, the IJ and BIA did not abuse their discretion in denying Gebrenigus’s 

motion to reopen as time- and number-barred. Further, the IJ and BIA did not 

abuse their discretion by concluding that Gebrenigus did not present evidence of 

changed country conditions to overcome these limitations because the reports 

Gebrenigus submitted in support of his motion showed a continuation of the same 

conditions that existed at the time of his original hearing.

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II.

We review de novo our subject matter jurisdiction. Butka v. U.S. Att’y Gen., 

827 F.3d 1278, 1282 n.4 (11th Cir. 2016).

The BIA may at any time reopen or reconsider sua sponte any case in which 

it has rendered a decision. 8 C.F.R. § 1003.2(a). The decision to reopen sua 

sponte is committed to agency discretion, which is so wide and standardless that it 

is not reviewable. Lenis v. U.S. Att’y Gen., 525 F.3d 1291, 1293-94 (11th Cir. 

2008). Thus, we lack jurisdiction to review legal claims related to the BIA’s denial 

of a motion to reopen proceedings sua sponte. See Butka, 827 F.3d at 1285. 

However, we have expressly left open the question of whether we may exercise 

jurisdiction over constitutional claims related to an underlying request for sua 

sponte reopening. Lenis, 525 F.3d at 1294 n.7; Butka, 827 F.3d at 1286 n.7.

We may review legal and constitutional claims associated with a petition for 

review notwithstanding the INA’s jurisdictional bars. INA § 242(a)(2)(D), 8 

U.S.C. § 1252(a)(2)(D). The exception to the jurisdiction-stripping provisions 

contained in the INA applies only when the petitioner’s constitutional claim is 

“colorable.” Arias v. U.S. Att’y Gen., 482 F.3d 1281, 1284 (11th Cir. 2007). If the 

constitutional claim has no merit, we lack jurisdiction. Gonzalez-Oropeza v. U.S. 

Att’y Gen., 321 F.3d 1331, 1333 (11th Cir. 2003).

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Due process claims must assert a deprivation of a constitutionally protected 

liberty or property interest. Bing Quan Lin, 881 F.3d at 868-69. There is no 

constitutionally protected interest in purely discretionary forms of relief. Id. 

Motions to reopen are discretionary forms of relief as to which there is no 

constitutionally protected interest. Id.

Here, we lack jurisdiction to consider Gebrenigus’s legal and constitutional 

claims associated with the denial of sua sponte reopening. Even if we have 

jurisdiction to consider colorable constitutional claims related to the denial of sua 

sponte reopening, we do not have jurisdiction here because Gebrenigus’s 

constitutional claim is not colorable because he can claim no constitutionally 

protected interest in a motion to reopen proceedings.

III.

The INA limits the scope of an appeals court’s review to the administrative 

record on which the order of removal is based. INA § 242(b)(4)(A), 8 U.S.C. 

§ 1252(b)(4)(A). In addition, it bars appeals courts from remanding a case to the 

BIA to consider additional evidence. See INA § 242(a)(1), 8 U.S.C. § 1252(a)(1) 

(limiting appellate courts’ ability to remand for consideration of additional 

evidence under 28 U.S.C. § 2347(c)). We interpret these limitations as a 

jurisdictional bar prohibiting us from consideration of extra-record evidence 

submitted for the first time on appeal or from remanding to the BIA to consider 

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new evidence. See Al Najjar v. Ashcroft, 257 F.3d 1262, 1278-79, 1281 (11th Cir. 

2001).

Here, we cannot address the new evidence Gebrenigus submitted in his 

appendix because our review is limited to the administrative record. Further, we 

do not have the authority to remand the case to the BIA for consideration of this 

evidence. 

PETITION DISMISSED IN PART AND DENIED IN PART.1

 1 The Government’s motion to strike portions of Gebrenigus’ appendix is DENIED.

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