[DO NOT PUBLISH]

IN THE UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT

________________________

No. 19-13831

Non-Argument Calendar

________________________

Agency No. A099-803-405

GUSTAVO ADOLFO AYALA AVALO, 

 Petitioner,

 versus

U.S. ATTORNEY GENERAL, 

 Respondent.

________________________

Petition for Review of a Decision of the

Board of Immigration Appeals

________________________

(June 11, 2020)

Before WILLIAM PRYOR, Chief Judge, JILL PRYOR and DUBINA, Circuit 

Judges.

PER CURIAM: 

Case: 19-13831 Date Filed: 06/11/2020 Page: 1 of 10
2

Gustavo Adolfo Ayala Avalo (“Avalo”) petitions for review of the denial by 

the Board of Immigration Appeals (“BIA”) of his motion to reopen his underlying 

removal proceedings. He first argues on appeal that the BIA did not reasonably

consider his request for equitable tolling and that it erroneously considered his 

marriage fraud in its decision to deny his motion to reopen. Second, Avalo argues 

that the BIA’s statement that he did not support his motion to reopen with an 

application and supporting evidence was clearly erroneous and a misstatement of 

the record and that he met the statutory requirements for cancellation of removal. 

Lastly, Avalo argues that the BIA erroneously failed to address his motion to 

reopen based on its sua sponte authority.

I.

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

Zhang v. U.S. Att’y Gen., 572 F.3d 1316, 1319 (11th Cir. 2009). An alien may file 

a motion to reopen within 90 days of the date of the final order of removal. 8 

U.S.C. § 1229a(c)(7); 8 C.F.R. § 1003.2(c). The BIA can toll this 90-day deadline 

when an alien establishes that: (1) he has been pursuing his rights diligently; and 

(2) some extraordinary circumstance stood in his way. Lin v. U.S. Att’y Gen., 881 

F.3d 860, 872 (11th Cir. 2018). The alien must demonstrate both elements. See 

Lawrence v. Florida, 549 U.S. 327, 336-37, 127 S. Ct. 1079, 1087 (2007) (habeas 

context). Tolling is an “extraordinary remedy” that should be used sparingly, but 

Case: 19-13831 Date Filed: 06/11/2020 Page: 2 of 10
3

courts may toll time limitations when an inequitable event prevents a party’s 

timely action. Booth v. Carnival Corp., 522 F.3d 1148, 1150 (11th Cir. 2008).

Under the Illegal Immigration Reform and Immigrant Responsibility Act of 

1996 (“IIRIRA”), the Attorney General of the United States has discretion to 

“cancel removal” and adjust the status of certain nonpermanent residents. 8 U.S.C. 

§ 1229b(1). To be eligible for such relief, a nonpermanent resident must meet 

certain enumerated criteria, including that the noncitizen: (1) “has been physically 

present in the United States for a continuous period of not less than ten years”

immediately preceding the date of an application for cancellation of removal; (2) 

“has been a person of good moral character during such period”; (3) “has not been 

convicted of an offense under 8 U.S.C. §§ 1182(a)(2), 1227(a)(2), or 1227(a)(3)”; 

and (4) “establishes that removal would result in exceptional and extremely 

unusual hardship to the alien’s spouse, parent, or child,” who is a United States 

citizen or a lawful permanent resident. Id. IIRIRA also established the stop-time 

rule, which states that any period of continuous physical presence in the United 

States shall be deemed to end when the alien is served a Notice to Appear, 

(“NTA”). 8 U.S.C. § 1229b(d)(1)(A). 

Under 8 U.S.C. § 1101(f)(6), if a person applying for cancellation of 

removal has “given false testimony for the purpose of obtaining any benefits under 

this chapter,” then the BIA shall not find him to be a person of good moral 

Case: 19-13831 Date Filed: 06/11/2020 Page: 3 of 10
4

character. See Jimenez-Galicia v. U.S. Att’y Gen., 690 F.3d 1207, 1210 (11th Cir. 

2012). This per se category automatically precludes a finding that the person has 

good moral character. Id. at 1209. Aside from the per se categories, the INA has a 

“catchall provision,” which states that any person who is not within any of the per 

se categories is not precluded from being found to be not of good moral character 

for other reasons. See id. at 1210. While a BIA decision that a petitioner lacks

good moral character for being in one of the per se categories might be 

non-discretionary, such decision pursuant to the catchall provision is discretionary. 

Id. We have authority to review such discretionary decisions only if the petitioner 

presents questions of law or constitutional claims about the decision. Id.

The relevant period for determining good moral character for the purpose of 

establishing eligibility for cancellation of removal must include the time during 

which the respondent is in proceedings, i.e., “until the issuance of an 

administratively final decision on the application.” In re Ortega-Cabrera, 23 I&N 

Dec. 793, 797 (BIA 2005). The alien must show good moral character for a period 

of ten years (the same period as that in which continuous physical presence is 

judged), which is calculated backward from the date on which the application is 

finally resolved. Id. A final order of removal is a final administrative decision. 

See Jiang v. U.S. Att’y Gen., 568 F.3d 1252, 1256 (11th Cir. 2009).

Case: 19-13831 Date Filed: 06/11/2020 Page: 4 of 10
5

An immigration court is vested with jurisdiction to conduct removal 

proceedings upon the filing of a charging document. See 8 C.F.R. § 1003.14(a). 

An NTA is a charging document. See Cunningham v. U.S. Att’y Gen., 335 F.3d 

1262, 1266 (11th Cir. 2003). By statute, an NTA must specify, among other 

things, the time and place at which an alien’s removal hearing will be held. INA 

§ 239(a)(1)(G)(i), 8 U.S.C. § 1229(a)(1)(G)(i). But, under the regulatory 

framework, an NTA is not required to specify the time and place of an alien’s 

removal hearing. See generally 8 C.F.R. § 1003.15.

In Pereira v. Sessions, the Supreme Court held—in the context of when an 

alien’s continuous physical presence for purposes of cancellation of removal 

ends—that an NTA that does not specify the time and place of the removal hearing 

does not comport with 8 U.S.C. § 1229(a) and consequently is not an NTA at all. 

See 585 U.S. ___, 138 S. Ct. 2105, 2110 (2018). Thus, the Court held that the 

defective NTA does not trigger the stop-time rule. Id.

We have considered whether an NTA that failed to state the time and date of 

the hearing deprives the agency of jurisdiction over the removal proceedings. See 

Perez-Sanchez v. U.S. Att’y Gen., 935 F.3d 1148, 1150 (11th Cir. 2019). We held 

in Perez-Sanchez that, although an NTA’s failure to specify the time of the hearing 

violated 8 U.S.C. § 1229, the statutory requirement was not jurisdictional. Id. at 

Case: 19-13831 Date Filed: 06/11/2020 Page: 5 of 10
6

1153-54. We held that, instead, the requirement was a claim processing rule. Id.

at 1154-55. 

We have jurisdiction to determine whether the BIA gave “reasoned 

consideration” to a petitioner’s claims. Jeune v. U.S. Att’y Gen., 810 F.3d 792, 803 

(11th Cir. 2016). When a decision of an Immigration Judge or the BIA “is so 

lacking in reasoned consideration and explanation that meaningful review is 

impossible,” we have granted petitions for review, vacated agency decisions, and 

remanded for further proceedings. Id. A reasoned-consideration examination 

looks at whether the agency 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.” Id. (alteration omitted). 

While the BIA is required to consider all evidence submitted by a petitioner, 

“it need not address specifically each claim the petitioner made or each piece of 

evidence the petitioner presented.” Id. (quotation marks omitted). The BIA does 

not give reasoned consideration to a claim when it “misstates the contents of the 

record, fails to adequately explain its rejection of logical conclusions, or provides 

justifications for its decision which are unreasonable and which do not respond to 

any arguments in the record.” Id.

Here, we conclude that the BIA did not abuse its discretion in failing to 

consider explicitly Avalo’s equitable tolling argument. The BIA was not required 

Case: 19-13831 Date Filed: 06/11/2020 Page: 6 of 10
7

to specifically address Avalo’s equitable tolling claim, though it arguably did so 

implicitly by acknowledging that Avalo sought reopening of his proceedings due to 

the new rule of law articulated in Pereira and by denying his motion to reopen as 

untimely. See Jeune, 810 F.3d at 803. Further, this change in the law could not 

have constituted an extraordinary circumstance necessary to establish equitable 

tolling in this case because Pereira did not enable Avalo’s eligibility for 

cancellation of removal. See Pereira, 585 U.S. at ___, 138 S. Ct. at 2110. Pereira

did not remove jurisdiction from the BIA or impact Avalo’s eligibility for 

cancellation of removal regarding the ten-year presence requirement. See Pereira, 

585 U.S. at ___, 138 S. Ct. at 2110; Perez-Sanchez, 935 F.3d at 1153-55. Thus, 

the BIA reasonably considered his argument. See Jeune, 810 F.3d at 803.

Second, we conclude that Avalo’s argument regarding the BIA’s 

consideration of his admission of marriage fraud is without merit. Even if his 2005 

marriage fraud was somehow outside of the relevant 10-year period, the BIA, in its 

discretion, could still consider it under the “catchall” provision of the INA, which 

is what the BIA appeared to do. See Jimenez-Galicia, 690 F.3d at 1210. If the 

BIA considered Avalo’s marriage fraud as part of its discretionary authority, then 

we lack jurisdiction to review such consideration. See id. However, Avalo’s 

marriage fraud admission would still fall within the relevant 10-year period for 

determining good moral character. Thus, the BIA may not have had discretion to 

Case: 19-13831 Date Filed: 06/11/2020 Page: 7 of 10
8

grant him cancellation of removal. See id. at 1209-10. Accordingly, because the 

BIA adequately considered Avalo’s argument regarding equitable tolling, and it 

did not make any procedural error in considering the impact of Avalo’s marriage 

fraud on his eligibility for cancellation of removal, we conclude that the BIA did 

not abuse its discretion in denying Avalo’s motion to reopen as untimely. 

II.

We review our own subject matter jurisdiction de novo. Amaya-Artunduaga 

v. U.S. Att’y Gen., 463 F.3d 1247, 1250 (11th Cir. 2006). Under INA § 242(a)(2), 

8 U.S.C. § 1252(a)(2), an appellate court’s jurisdiction is restricted to reviewing 

certain final orders and denials of relief. As relevant here, our jurisdiction relating 

to review of the agency’s discretionary decisions is set out in INA 

§ 242(a)(2)(B)(i), 8 U.S.C. § 1252(a)(2)(B)(i), which provides that no court shall 

have jurisdiction to review any judgments regarding the granting of, among other 

things, cancellation of removal under INA § 240A, 8 U.S.C. § 1229b. See 

Martinez v. U.S. Att’y Gen., 446 F.3d 1219, 1221 (11th Cir. 2006); see also Alhuay 

v. U.S. Att’y Gen., 661 F.3d 534, 549 (11th Cir. 2011).

As discussed previously, the INA vests the Attorney General with the 

discretion to cancel removal of a deportable alien from the United States if he 

shows several criteria. See INA § 240A, 8 U.S.C. § 1229b; see Martinez, 446 F.3d 

at 1222-23. However, following the passage of the REAL ID Act of 2005, we 

Case: 19-13831 Date Filed: 06/11/2020 Page: 8 of 10
9

retain jurisdiction to decide “constitutional claims or questions of law.” INA 

§ 242(a)(2)(D), 8 U.S.C. § 1252(a)(2)(D); Arias v. U.S. Att’y Gen., 482 F.3d 1281, 

1284 (11th Cir. 2007). 

First, under INA § 242(a)(2)(B)(i), 8 U.S.C. § 1252(a)(2)(B)(i), we lack

jurisdiction to review the BIA’s determination that, even if Avalo’s motion was

timely, he was not entitled to cancellation of removal. That is so, because, under 

the INA, the Attorney General has the sole discretion to grant that form of relief. 

See INA § 240A, 8 U.S.C. § 1229b. Thus, as we have previously ruled, INA 

§ 242(a)(2)(B)(i) strips this court of jurisdiction to review the Attorney General’s 

decision to deny Avalo cancellation of removal. Martinez, 446 F.3d at 1221; 

Alhuay, 661 F.3d at 549. Accordingly, we dismiss Avalo’s petition to the extent 

that he seeks review of the merits of that discretionary determination. Id.

Second, although it appears that the BIA misstated the record by noting that, 

even if Avalo’s motion was timely, he still did not “support” the motion “with an 

application for cancellation of removal . . . and supporting evidence,” we do not 

reach this issue because Avalo’s motion was untimely, as discussed above.

III.

We lack jurisdiction to review the denial of a motion to reopen sua sponte. 

Lenis v. U.S. Att’y Gen., 525 F.3d 1291, 1292-93 (11th Cir. 2008). 

Case: 19-13831 Date Filed: 06/11/2020 Page: 9 of 10
10

Here, as Avalo acknowledges in his brief on appeal, we lack jurisdiction to 

review the BIA’s denial of his motion to reopen sua sponte. See Lenis, 525 F.3d at

1292-93. Although Avalo argues that the BIA did not consider his argument 

regarding a sua sponte reopening of the proceedings, this is belied by the record. 

In its written denial of Avalo’s motion to reopen, the BIA recalled Avalo’s 

arguments, including that he requested that it use its sua sponte authority to reopen 

his removal proceedings. The BIA then explained why Avalo’s motion was 

time-barred and why it would not use its discretion to reopen the proceedings. 

Thus, we conclude that the BIA reasonably considered Avalo’s request. See Jeune, 

810 F.3d at 803. Accordingly, for the aforementioned reasons, we DISMISS

Avalo’s petition to the extent that he seeks review of the merits of the BIA’s 

discretionary denial of his application for cancellation of removal and DENY his 

petition with respect to his claims regarding his motion to reopen.

PETITION DISMISSED IN PART and DENIED IN PART.

Case: 19-13831 Date Filed: 06/11/2020 Page: 10 of 10