[DO NOT PUBLISH]

In the

United States Court of Appeals

For the Eleventh Circuit

____________________

No. 21-12183

Non-Argument Calendar

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JOSE LEDEZMA, 

Petitioner,

versus

U.S. ATTORNEY GENERAL, 

Respondent.

____________________

Petition for Review of a Decision of the

Board of Immigration Appeals

Agency No. A095-096-434

____________________

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2 Opinion of the Court 21-12183

Before JORDAN, BRASHER, and JULIE CARNES, Circuit Judges.

PER CURIAM:

Petitioner Jose Ledezma, a native and citizen of Honduras, 

appeals the denial by the Board of Immigration Appeals (the “BIA”) 

of his motion to sua sponte reopen his removal proceeding. As 

discussed below, this Court lacks jurisdiction to review the BIA’s 

denial of sua sponte relief. Accordingly, we dismiss Petitioner’s appeal. 

BACKGROUND 

Petitioner left Honduras and traveled to the United States in 

September 1998. He crossed the United States border near 

Brownsville, Texas, without presenting himself to immigration officials. Petitioner was served in October 2004 with a Notice to Appear that charged him with being present in the United States without being admitted or paroled, in violation of INA § 212(a)(6)(A)(i). 

After continuing Petitioner’s removal proceeding several times to 

give him an opportunity to find an attorney, an IJ held a hearing in 

Petitioner’s case on May 4, 2005, with Petitioner appearing pro se. 

Petitioner admitted during his hearing that he did not have 

a valid entry document when he entered the United States, and that 

he did not present himself to an immigration officer upon his entry. 

The IJ advised Petitioner that he was therefore removable and 

asked him directly if there was any reason he should not be returned to Honduras. Petitioner responded that he left Honduras 

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because of gangs, that he had been pressured for recruitment and 

physically harmed while in Honduras, and that he had come to the 

United States to be with his father. The IJ observed that the United 

States also had problems with gangs and, after inquiring whether 

Petitioner had any other issues, asked the Government if it saw any 

availability of relief. The Government suggested voluntary departure. 

At the end of the hearing, the IJ found Petitioner removable 

and granted voluntary departure. The IJ explained to Petitioner 

that if he failed to depart from the United States before September 

1, 2005, he would be subject to civil penalties and ineligible for benefits under the INA for ten years, and that the only excuse for failing 

to comply was exceptional circumstances beyond Petitioner’s control, such as a serious illness or the death of an immediate family 

member in the United States. The IJ reserved Petitioner’s right to 

appeal and provided him with the form used to file an appeal, along 

with a list of agencies that provide representation in BIA appeals at 

low or no cost. In its order, the IJ noted that Petitioner had testified 

that he did not want to return to Honduras because gangs there 

had tried to recruit him, but the IJ concluded that there was nothing in Petitioner’s testimony “indicating any type of basis for [Petitioner to file] an asylum application.” 

Petitioner appealed the IJ’s order to the BIA and filed a pro 

se brief in which he argued that he qualified for asylum and withholding of removal. In the brief, Petitioner defined—and extensively quoted case law defining—the term “refugee” as used in the 

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INA. He then argued that he qualified as a refugee because of the 

gang crisis in Honduras. The BIA issued a decision in October 2006 

dismissing Petitioner’s appeal. In its decision, the BIA acknowledged Petitioner’s testimony that he could not return to Honduras 

because he was afraid of gangs there. However, the BIA noted that 

Petitioner had not submitted an I-589 application for asylum or 

withholding of removal, either to the IJ or with the brief he submitted to the BIA. 

In November 2018, more than twelve years after the final 

order dismissing his BIA appeal, Petitioner filed a motion for the 

BIA to sua sponte reopen his removal proceeding to allow him to 

apply for asylum, withholding of removal, and relief under the 

Convention Against Torture (“CAT”). In support of his motion, 

Petitioner argued that he was not given the opportunity in his initial proceeding to file for asylum and that he was coerced to accept 

voluntary departure when it was clear he feared returning to Honduras. Petitioner noted that the BIA had authority to sua sponte 

reopen any case in which it had rendered a decision, albeit such 

authority could only be used in “exceptional circumstances” and 

was not intended to “cure filing defects or circumvent [applicable] 

regulations.” In conjunction with his motion to reopen, Petitioner 

filed, for the first time, an I-589 application for asylum, withholding 

of removal, and CAT relief, again asserting that he feared returning 

to Honduras because of gang activity there and the possibility of 

forced recruitment.

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The BIA determined that Petitioner’s motion to reopen was 

untimely. As explained in the BIA’s decision, with certain exceptions, a motion to reopen a removal proceeding must be filed no 

later than 90 days after the date of the agency’s final decision on 

removal—which in Petitioner’s case occurred in October 2006. See 

INA § 240(c)(7)(C)(i), 8 U.S.C. § 1229a(c)(7)(C)(i). Petitioner filed 

his motion to reopen in November 2018, more than twelve years 

after the BIA’s final decision in his proceeding. Petitioner did not 

allege that his motion fell within any of the exceptions to the time 

limitations applicable to a motion to reopen removal proceedings, 

nor did he explain why he waited twelve years to file the motion. 

The BIA concluded further that Petitioner had failed to 

show an exceptional situation that warranted the exercise of its discretionary sua sponte reopening authority. Specifically addressing 

Petitioner’s claim that he should have been given an opportunity 

to apply for asylum before the IJ, the BIA noted that Petitioner had 

not presented any argument that he was prima facie eligible for 

asylum as it was not apparent that the harm he feared in Honduras—forced recruitment and harm by criminal gangs—would be on 

account of a protected ground under the INA. For this reason, and 

because of the untimeliness of Petitioner’s motion, the BIA declined to reopen Petitioner’s removal proceeding sua sponte. 

Petitioner appeals the BIA’s denial of his motion to sua 

sponte reopen his removal proceeding to this Court. In support of 

his appeal, Petitioner argues that the BIA erred when it declined to 

exercise its sua sponte authority to reopen his removal proceeding, 

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and that he is entitled to reopening based on due process and other 

constitutional violations allegedly committed by the IJ in his initial 

proceeding and compounded by the BIA on appeal. 

DISCUSSION 

“When the BIA issues a decision” in a case arising under the 

INA, “we review only that decision, except to the extent the BIA 

expressly adopts the IJ’s decision.” Lopez v. U.S. Att’y Gen., 504 

F.3d 1341, 1344 (11th Cir. 2007). We review the BIA’s decision on 

a motion to reopen a removal proceeding for an abuse of discretion. See Chacku v. U.S. Att’y Gen., 555 F.3d 1281, 1286 (11th Cir. 

2008). “This review is limited to determining whether the BIA exercised its discretion in an arbitrary or capricious manner.” Zhang 

v. U.S. Att’y Gen., 572 F.3d 1316, 1319 (11th Cir. 2009). “The moving party bears a heavy burden, . . . as motions to reopen are disfavored, especially in removal proceedings.” Id. (citation omitted).

We review questions concerning our own jurisdiction de novo. 

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

As an initial matter, we note that Petitioner’s claim for relief 

in this case hinges on the BIA’s authority under the INA to sua 

sponte reopen removal proceedings “at any time.” See 8 C.F.R. 

§ 1003.2(a). Under the INA, a petitioner also may file a “statutory” 

motion to reopen his removal proceedings, but such a motion generally must be filed within 90 days of the final order of removal. 

See INA § 240(c)(7)(A), (C), 8 U.S.C. § 1229a(c)(7)(A), (C). As discussed, Petitioner filed his motion to reopen more than twelve 

years after the final order of removal in his case. The 90-day 

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deadline for filing a motion to reopen is subject to certain exceptions and to equitable tolling. See Avila-Santoyo v. U.S. Att’y Gen., 

713 F.3d 1357, 1362–65 (11th Cir. 2013) (en banc). However, Petitioner does not argue that any exception or equitable tolling applies 

in this case, and he requested only sua sponte reopening in his motion to the BIA. Moreover, Petitioner does not argue in the briefing 

he has filed in this Court that the BIA abused its discretion by declining to exercise its statutory power to reopen his removal proceedings. Instead, Petitioner seeks review only of the BIA’s discretionary decision not to exercise its sua sponte authority to reopen. 

Under the INA and its governing regulations, the BIA has 

the authority to reopen or reconsider a removal order sua sponte 

at any time, with certain restrictions. See 8 C.F.R. § 1003.2(a). 

“The BIA has broad discretion over motions for sua sponte reopening, . . . but it has held that it will exercise its authority only in exceptional circumstances.” Butka v. U.S. Att’y Gen., 827 F.3d 1278, 

1283 (11th Cir. 2016) (citation omitted). To satisfy the exceptional 

circumstances standard, a petitioner must show, among other 

things, “that there is a substantial likelihood that the result in [his] 

case would be changed if reopening is granted.” Id. (quotation 

marks omitted). In this case, although the BIA acknowledged that 

Petitioner had expressed a fear of returning to Honduras, it determined that his motion did not demonstrate an “exceptional situation that would warrant” sua sponte reopening because Petitioner 

did not present “any argument that he is prima facie eligible for 

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8 Opinion of the Court 21-12183

asylum, as it is not apparent that the harm he fears would be on 

account of a protected ground” under the INA. 

Petitioner argues that the BIA erred in holding that he did 

not show exceptional circumstances, and in support of his argument he cites the IJ’s alleged (1) failure to hold an evidentiary hearing concerning Petitioner’s fear of persecution, (2) failure to advise 

Petitioner of his right to file for asylum or withholding of removal, 

and (3) forcing Petitioner to accept voluntary departure when he 

never requested that relief. We cannot—and do not—consider the 

merits of Petitioner’s arguments because this Court has “squarely 

held that it lack[s] jurisdiction to review a BIA decision denying a 

petitioner’s motion for sua sponte reopening.” Id. (citing Lenis v. 

U.S. Att’y Gen., 525 F.3d 1291, 1293 (11th Cir. 2008)). As the Court 

explained in Butka, “judicial review is not available when agency 

action is committed to agency discretion by law.” See Butka, 827 

F.3d at 1283–84 (quotation marks omitted). Agency action is committed to agency discretion by law when “the statute at issue does 

not provide a meaningful standard against which to judge the 

agency’s exercise of discretion.” Id. (quotation marks omitted). 

This Court concluded in Lenis, and reiterated in Butka, that “neither the INA nor 8 C.F.R. § 1003.2(a) provide[s] any standard to 

govern the BIA’s exercise of its discretion to sua sponte reopen immigration proceedings.” See id. at 1284 (quotation marks omitted). 

Petitioner notes that we “may have jurisdiction to review 

colorable constitutional claims related to the BIA’s decision not to 

exercise its sua sponte authority.” This Court has expressly left 

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open the question of whether we may exercise jurisdiction over 

constitutional claims related to the BIA’s decision on a motion for 

sua sponte reopening. See id. But we have no occasion to rule on 

that issue here because Petitioner does not assert a colorable constitutional claim related to the BIA’s decision on his motion to reopen. Although Petitioner argues that the IJ and the BIA violated 

his due process and other constitutional rights in his initial removal 

proceeding, he does not point to any constitutional error committed by the BIA in its ruling on the motion to reopen. With respect 

to the motion to reopen, Petitioner’s argument is simply that the 

BIA erred in failing to find that sua sponte reopening was warranted in his case. That is an argument we lack jurisdiction to consider. See Arias v. U.S. Att’y Gen., 482 F.3d 1281, 1284 (11th Cir. 

2007) (noting that a petitioner cannot create jurisdiction “simply by 

cloaking an abuse of discretion argument in constitutional garb”). 

As such, Petitioner’s appeal must be dismissed. 

CONCLUSION 

For the foregoing reasons, we DISMISS Petitioner’s appeal 

for review of the BIA’s denial of his motion to reopen his removal 

proceedings sua sponte for lack of jurisdiction. 

PETITION DISMISSED 

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