[DO NOT PUBLISH]

IN THE UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT

________________________

No. 20-10537

Non-Argument Calendar

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Agency No. A200-849-634

MARCOS ARAUJO,

FERNANDA GOMES ARAUJO, 

 

 Petitioners,

 versus

U.S. ATTORNEY GENERAL, 

 

 Respondent.

________________________

Petition for Review of a Decision of the

Board of Immigration Appeals

________________________

(September 28, 2020)

Before WILSON, JILL PRYOR and BRASHER, Circuit Judges.

PER CURIAM:

Marcos and Fernanda Araujo (“the Araujos”) appeal the order of the Board 

of Immigration Appeals (“BIA”) denying their motion to reopen proceedings and 

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to reconsider the agency’s July 10, 2013 denial of their application for cancellation 

of removal. The government has moved for summary denial in part, to dismiss for 

lack of jurisdiction in part, and to stay the briefing schedule.

Summary disposition is appropriate either where time is of the essence, such 

as “situations where important public policy issues are involved or those where 

rights delayed are rights denied,” or where “the position of one of the parties is 

clearly right as a matter of law so that there can be no substantial question as to the 

outcome of the case, or where, as is more frequently the case, the appeal is 

frivolous.” Groendyke Transp., Inc. v. Davis, 406 F.2d 1158, 1162 (5th Cir. 1969).

We review the BIA’s denial of a motion for reconsideration and the denial of 

a motion to reopen for abuse of discretion. Jiang v. U.S. Atty Gen., 568 F.3d 1252, 

1256 (11th Cir. 2009); Assa’ad v. U.S. Atty Gen., 332 F.3d 1321, 1341 (11th Cir. 

2003). Our review is limited to determining whether the BIA exercised its 

discretion in an “arbitrary or capricious” manner. Ali v. U.S. Atty Gen., 443 F.3d 

804, 808 (11th Cir. 2006). “The moving party bears a heavy burden as motions to 

reopen are disfavored, especially in removal proceedings.” Zhang v. U.S. Atty 

Gen., 572 F.3d 1316, 1319 (11th Cir. 2009) (internal citations omitted). We lack 

jurisdiction to review the BIA’s decision denying sua sponte reopening unless the 

denial gives rise to a colorable constitutional claim. Bing Quan Lin v. U.S. Atty 

Gen., 881 F.3d 860, 871 (11th Cir. 2018). 

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A noncitizen may file only one motion to reopen and one motion to 

reconsider. INA §§ 240(c)(7)(A), (c)(6)(A); 8 U.S.C. §§ 1229a(c)(7)(A), 

(c)(6)(A). A motion to reconsider must be filed within 30 days of a final 

administrative order of removal. INA § 240(c)(6)(B); 8 U.S.C. § 1229a(c)(6)(B). 

A motion to reopen must be filed within 90 days of a final administrative order of 

removal. INA § 240(c)(7)(C)(i); 8 U.S.C. § 1229a(c)(7)(C)(i). The time and 

number limits on motions to reopen do not apply if the basis of the motion is to 

apply or reapply for asylum or withholding of removal “based on changed country 

conditions arising in the country of nationality . . . , if such evidence is material 

and was not available and would not have been discovered or presented at the 

previous proceeding.” INA § 240(c)(7)(C)(ii); 8 U.S.C. § 1229a(c)(7)(C)(ii). “An 

alien cannot circumvent the requirement of changed country conditions by 

demonstrating only a change in [his or her] personal circumstances.” Chen v. U.S. 

Atty. Gen., 565 F.3d 805, 809-10 (11th Cir. 2009).

First, there is no substantial question that the BIA did not abuse its discretion 

in denying the Araujos’ motion to reopen and for reconsideration as number-barred 

and time-barred. The Araujos do not dispute, and the record clearly establishes, 

that they have filed more than one motion to reopen and motion for 

reconsideration, which is not permitted. See INA §§ 240(c)(7)(A), (c)(6)(A); 8 

U.S.C. §§ 1229a(c)(7)(A), (c)(6)(A). Further, it is clear that the Araujos untimely 

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filed their motion as the BIA issued its merits decision on July 10, 2013 and the 

Araujos filed the instant motion on October 1, 2018—well after both the 90-day 

and 30-day deadlines. Therefore, the BIA did not abuse its discretion in denying 

the Araujos motion as number-barred and time-barred. The Araujos argue that the 

time and number limits do not apply because the basis of their motion was the 

changed country conditions in Brazil and that the BIA refused to consider the 

changed conditions. However, the BIA fully addressed this issue, in its denial of 

the instant petition and the denial of the Araujos’ fifth motion to reopen, and did 

not abuse its discretion in finding that the country conditions did not meet the 

statutory requirement because the evidence of the lower standard of living, 

recession, unemployment, and lack of educational opportunities was not material. 

Second, we lack jurisdiction to consider whether the BIA erred in declining 

to use its authority to sua sponte reopen the Araujos’ removal proceeding. See 

Bing Quan Lin, 881 F.3d at 871. Although the Araujos raised due process claims, 

in both their motion before the BIA and their appeal, they failed to support those 

claims with sufficient detail or argument to raise a “colorable constitutional claim.” 

See id. Further, we have already held that we lack jurisdiction to consider the 

BIA’s decision declining to use its sua sponte authority to reopen the Araujos’ case 

because the Araujos failed to raise colorable constitutional claims. See Araujo v. 

U.S. Atty. Gen. (“Araujo I”), No. 13-15489, slip op. at 5 (11th Cir. Aug. 19, 2014); 

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Araujo v. U.S. Atty. Gen. (“Araujo II”), No. 15-10910, slip op. at 5 (11th Cir. Sept. 

24, 2015); Araujo v. U.S. Atty. Gen. (“Araujo III”), No. 16-10562, slip op. at 2 

(11th Cir. Jan. 9, 2017); Araujo v. U.S. Atty. Gen., (“Araujo IV”), 730 F. App’x. 

855, 858 (11th Cir. 2018); Araujo v. U.S. Atty. Gen., (“Araujo V”), 756 F. App’x. 

865, 868 (11th Cir. 2018).

Therefore, because there is no substantial question that the Araujos’ motion 

is time- and number-barred and because we lack jurisdiction to consider whether 

the BIA erred in declining to exercise its sua sponte authority to reopen the case, 

we GRANT the government’s motion for summary denial in part and the 

government’s motion to dismiss for lack of jurisdiction in part, and we DENY as 

moot the government’s motion to stay the briefing schedule. See Groendyke 

Transp., Inc., 406 F.2d at 1162. 

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