MARCUS, Circuit Judge:
Petitioner Bing Quan Lin seeks review of a decision of the Board of Immigration Appeals ("BIA") denying his motion to reopen removal proceedings. On appeal, Lin raises a variety of claims—some properly before this Court; some not. As for Lin's constitutional claims, those challenging the order of removal itself, and those addressing the sufficiency of the Immigration Judge's order denying the instant motion, the issues were not properly exhausted in immigration proceedings or are otherwise not properly before us, barring our review. As for Lin's remaining claims challenging the BIA's decision, we cannot say that the BIA abused its discretion or that its opinion lacked reasoned consideration when it denied Lin's motion to reopen. Therefore, the petition must be dismissed in part and denied in part.
This case arises out of removal proceedings initiated by the Attorney General against Lin, a native and citizen of China. Lin entered the United States on December 16, 1991. He has presented materials suggesting that he entered at Honolulu, where he was issued an Alien Registration Number ("A-number") and a form I-122 instructing him to appear before an Immigration Judge ("IJ") at a time "to be determined later." The form gives the name of the applicant for admission as "Ping Chuan LIN." An "Order to Appear [for] Deferred Inspection," scheduling a hearing on December 17, 1991, also appears in the Administrative Record. In addition, a fingerprint card taken in Honolulu on December 16, 1991, bears the A-number assigned
In March 1993, Lin sought asylum. He says the application paperwork was prepared for him by an unlicensed practitioner of law. The asylum application gives Lin's name as "Lin, Bing Quan" and his date of birth as April 1, 1956. That form lists Lin's place and date of arrival in the United States as Hawaii, December 16, 1991. The application leaves blank spaces for the applicant's A-number, for "[o]ther names used," and for the signature of any preparer. It also gives Lin's immigration status as "E.W.I.," meaning "entered without inspection." Lin was issued a new A-number in connection with his asylum application. The application was unsuccessful. In June 1997, a Notice to Appear in removal proceedings was issued to Lin for a hearing on December 23, 1997. The Notice to Appear charged Lin with being "an alien present in the United States who has not been admitted or paroled." Notice was mailed to an address in Charlotte, North Carolina, and was returned marked unclaimed. Lin did not appear at that hearing either and was ordered removed
Lin timely filed a motion to reopen the removal proceedings, his
Lin continued to reside in the United States. In February 2014, the government approved an I-130 application,
Having received approval of the I-130, in 2014 Lin filed his
Lin then filed his
In May 2016, an Immigration Judge denied Lin's third motion to reopen his removal proceedings. The handwritten notations on the IJ's denial of the motion are limited in scope but legible. These notations explain that "no appeal was taken" from the denial of Lin's two previous motions to reopen. The additional notations appear to read as follows: "On 2/8/16 a third motion to reopen was filed—renewing argument denied in 2
Lin lodged an appeal with the Board of Immigration Appeals. The BIA denied his application in February of this year, explaining the history of Lin's entry, asylum application, and previously denied motions. The BIA agreed with the Immigration Judge's judgment and reasoning. It too specifically concluded that "[Lin]'s additional arguments in his third motion to reopen were not new or previously unavailable." The BIA also determined that there was no basis for it to have reopened
This appeal ensued.
First, we must determine whether the Court has the power to entertain each of petitioner's claims. See, e.g., Cadet v. Bulger, 377 F.3d 1173, 1179 (11th Cir. 2004) ("Federal courts `are obligated to inquire into subject-matter jurisdiction sua sponte whenever it may be lacking.'" (quoting Galindo-Del Valle v. Att'y Gen., 213 F.3d 594, 599 (11th Cir. 2000))). "We review our subject matter jurisdiction de novo." Amaya-Artunduaga v. U.S. Att'y Gen., 463 F.3d 1247, 1250 (11th Cir. 2006).
A petitioner contesting a final order of removal must exhaust the administrative immigration process before he may be heard in federal court. 8 U.S.C. § 1252(d)(1) ("A court may review a final order of removal
Here, Lin asserts a number of errors in the disposition of his third motion to reopen his removal proceedings as well as in his other motions and in the order of removal itself. However, we lack jurisdiction over Lin's constitutional claims as well as any of the claims unrelated to the third motion to reopen. Plainly, Lin's constitutional claims were of the kind that could have been raised in his immigration proceedings, but he failed to exhaust them. Likewise, we are barred from reviewing petitioner's claims that the Immigration Judge's decision was deficient because it was handwritten and briefly stated, since those claims were never presented to the BIA. Moreover, we cannot consider petitioner's challenges to the order of removal or to the denial of his motions to reopen in 1998 and again in 2014 because he never appealed from any of them.
Lin claims that his removal has been ordered in violation of the Fifth Amendment Due Process Clause. First, he says that he never received notice of the 1997 removal hearing. Second, he says the Immigration and Naturalization Service ("INS") failed to follow its own policy to search its records thoroughly for a previous A-number. Lin also asserts that this failure to follow agency policy makes the BIA's refusal to reopen
Although constitutional claims sometimes may avoid the requirement of administrative exhaustion, Lin's constitutional arguments were subject to an exhaustion requirement and undeniably were not exhausted. Accordingly, we lack the power to consider them.
The administrative exhaustion requirement may not always prevent consideration of certain constitutional claims that a petitioner has not asserted in immigration proceedings. Thus, we have suggested that "some classes of claims" arising under the immigration laws and alleging constitutional error are not subject to a requirement of administrative exhaustion, while others are. A panel of this Court has explained:
Sundar, 328 F.3d at 1325 (internal citations omitted).
Where a procedural due process claim properly falls within the immigration courts' power to review and provide a remedy, the claim must be exhausted before it can be considered by this Court. See, e.g., id.; see also Amaya-Artunduaga, 463 F.3d at 1251 ("Although we have never specifically determined which due process claims require exhaustion, other circuits have determined that procedural due process claims, as well as procedural errors argued in due process terms, must be raised before the BIA [to be considered on appeal]."). We have applied that principle and declined to review a due process claim raised for the first time in this Court. Thus, in Amaya-Artunduaga, we determined that the petitioner's due process claim, regarding the fairness of the Immigration Judge as a neutral factfinder, was "precisely the kind of procedural error which requires exhaustion." 463 F.3d at 1251. Notably, however, those constitutional claims raised for the first time in this Court that address issues beyond the power of the BIA to address in adjudicating an individual's case may not require exhaustion. See, e.g., Haitian Refugee Ctr., Inc. v. Nelson, 872 F.2d 1555, 1561 (11th Cir. 1989).
Applying these principles, we hold that Lin was required to administratively exhaust his constitutional claims before raising them in this Court. Each claim is the kind of particularized challenge to process in individual case review that we've deemed subject to the exhaustion requirement in Amaya-Artunduaga. Each of his claims could have been addressed by the BIA. He finds constitutional error in the notice issued in his immigration proceedings, in the failure to search records in his immigration proceedings, and in the refusal to reopen in his immigration proceedings. None of these claims raises a larger challenge to the immigration process beyond the power of the BIA to address.
Since Lin's constitutional claims were subject to an exhaustion requirement, we readily conclude that he has not exhausted them. When determining whether exhaustion has occurred, we look to the "substance of the appeal." Indrawati, 779 F.3d at 1298 ("[A]dministrative exhaustion requires no specific incantation."). While there need not have been a "well-developed" legal argument to support a claim, Lin must have offered "more than ... a passing reference to the issue" in order to show he properly exhausted each claim. Jeune, 810 F.3d at 800. There must have been enough of an argument to enable the BIA to consider the issue. See id. An examination of this record, however, reveals nothing that would have clearly flagged to the BIA for its consideration the issues Lin has now raised in this Court. His memorandum on appeal to the BIA did challenge the proceedings to which Lin was subject, arguing that it was "procedurally improper" to place Lin in removal proceedings. However, that argument makes no mention of due process, the Constitution, or the constitutional claims presented to us concerning notice and agency procedures.
But even if Lin had raised some constitutional claim regarding the failure to grant Lin's motion to reopen over which we could exert jurisdiction, any such claim would still fail on its own terms. Procedural due process claims must assert a deprivation of a constitutionally protected liberty
Because the kinds of constitutional claims raised are subject to an exhaustion requirement, and because Lin has failed to exhaust his constitutional claims before the BIA, we are without the power to consider them.
Lin also objects to the sufficiency of the Immigration Judge's decision. First, he seems to suggest that there was, or should have been, a more formal decision from the Immigration Judge because the order in the Administrative Record says that it was entered "for the reasons indicated in the attached decision," although nothing was apparently physically attached to the copy of the order. He also attacks the rationale offered by the IJ as not constituting "reasoned consideration" of his claims—both because the reasons are insufficiently explained and because the reasons fail to address the "crux" of Lin's argument.
We cannot exercise jurisdiction over Lin's claims of error about the sufficiency of the Immigration Judge's reasoning. As the government points out, this Court cannot review those claims if they were not administratively exhausted in the first place by appeal to the BIA. Lin's arguments about the sufficiency of the IJ's reasoning and the purportedly missing "attached" reasoning were never raised in the BIA and have not been administratively exhausted. Again, the petitioner need not show a completely developed argument, but he must present enough to flag the issue and enable the BIA to address the matter. See Jeune, 810 F.3d at 800. And, there is nothing in the record to indicate that Lin attempted, even with a passing reference, to raise the sufficiency of the Immigration Judge's notations to the BIA. In his Notice of Appeal to the BIA, Lin did argue that "[t]he IJ did not discuss whether the decision to deny the motion will prejudice [Lin]." However, that claimed shortcoming—failing to address the issue of prejudice—is not raised in this appeal. No other arguments in Lin's Notice of Appeal to the BIA or in his legal memorandum filed with the BIA assert any error in the sufficiency of the Immigration Judge's order. Thus, to the extent Lin claims that the Immigration Judge's order reflected inadequate consideration or insufficient explanation, we cannot examine that claim. In contrast, as we discuss below, we have the power to consider whether the BIA's decision and acceptance of the Immigration Judge's decision constituted "reasoned consideration" of the issues brought to the BIA.
However, even if we could review Lin's claim that the Immigration Judge gave insufficient reasoning, it would fail on the merits. The decision of an Immigration
Finally, to the extent Lin asks this Court to reconsider the propriety and substance of his longstanding removal order and the first and second motions to reopen that order, we cannot engage in that inquiry either. Lin advances several arguments that the removal order was unfair. Thus, for example, he claims that the order is "transparently invalid" and that the order is "subject to remand" because it is "premised on a patently false factual determination." But in Gaksakuman v. United States Attorney General, 767 F.3d 1164 (11th Cir. 2014), we observed that we do not have jurisdiction to review earlier trips through immigration proceedings: "Because we conclude that the earlier order [of removal] entered by the BIA was final, that [the petitioner] declined to pursue a timely petition for its review, and that [the petitioner], in his second appeal to the BIA, failed to exhaust his earlier arguments, we hold that we lack jurisdiction to review the earlier order." Id. at 1166; cf. Access Now, Inc. v. Sw. Airlines Co., 385 F.3d 1324, 1332 (11th Cir. 2004) (describing that we will not consider issues raised for the first time on appeal from a district court except in certain special circumstances).
In the same way, we decline to review the substance of the 1997 hearing as well as Lin's first and second motions to reopen his removal proceedings. Lin offers no explanation why we should excuse his failure to timely appeal the removal order or the denials of his first two motions to reopen and examine challenges to those decisions for the first time at this late hour. Thus, we do not reach the merits of claims challenging the 1997 order or the findings by the Immigration Judge on the first and second motions to reopen.
But even if we could evaluate the removal order or the previous motions to reopen, we can discern no reason why the removal order must be subject to reopening. Even if the order is "premised on a patently false factual determination" (that Lin entered the country without inspection), that determination was reached because of Lin's own asylum application. In that application, Lin did not provide the name of any preparer, did not provide the A-number he had been issued in Honolulu, and did not provide any alternative name. Lin also declared under penalty of perjury that the contents of the application were "true and correct to the best of [his] knowledge and belief." He then failed to appear at his scheduled hearing and did not appeal the denial of his first motion to reopen. The BIA has wide discretion to deny reopening even where otherwise permissible, and there is no clear indication that the removal order would have been subject to reconsideration.
We do, however, have jurisdiction to review the claims challenging the adequacy and substance of the IJ's and the BIA's holdings that Lin's third motion to reopen was time-barred, number-barred, and lacked any new and previously unavailable evidence. Generally we have jurisdiction to consider appeals of the
Generally we cannot review decisions of the BIA that are committed to its discretion. Thus, we have held on several occasions that we lack jurisdiction to review a decision of the BIA not to exercise its power to reopen a case
In Mata v. Lynch, ___ U.S. ___, 135 S.Ct. 2150, 192 L.Ed.2d 225 (2015), the Supreme Court held recently that the courts of appeals have jurisdiction to examine immigration claims that have been rejected pursuant to the statutory requirements for motions to reopen. Id. at 2154-55 ("[T]he reason for the BIA's denial makes no difference to the jurisdictional issue. Whether the BIA rejects the alien's motion to reopen because it comes too late or because it falls short in some other respect, the courts have jurisdiction to review that decision. Similarly, that jurisdiction remains unchanged if the Board, in addition to denying the alien's statutorily authorized motion, states that it will not exercise its separate
The BIA decision in this case parallels that in Mata. There, the BIA order on appeal had, first, denied a motion to reopen as being untimely and not entitled to equitable tolling and, second, declined to use the BIA's power to reopen the removal order
Here, the BIA's decision offers three nondiscretionary grounds that are reviewable under Mata—that the motion was untimely, numerically barred, and lacking new and previously unavailable evidence. Our jurisdiction also extends to challenges to the legal reasoning offered by the BIA.
To reiterate, the claims properly before this Court are Lin's challenges to the
Where, as here, an order of the BIA adopts certain findings of the Immigration Judge, we review both the determination of the BIA and the determination of the IJ. See Gaksakuman, 767 F.3d at 1170; Jeune, 810 F.3d at 799 ("When the BIA issues a decision, we review only that decision, except to the extent that the BIA expressly adopts the immigration judge's decision. When the BIA explicitly agrees with the findings of the immigration judge, we review the decision of both the BIA and immigration judge as to those issues." (citation omitted)). Moreover, we review the BIA's decision, and the Immigration Judge's decision to the extent adopted by the BIA, for abuse of discretion. See, e.g., Zhang v. U.S. Att'y Gen., 572 F.3d 1316, 1319 (11th Cir. 2009) ("`We review the [BIA's] denial of a motion to reopen removal proceedings for abuse of discretion.' This review is limited to determining whether the BIA exercised its discretion in an arbitrary or capricious manner. The moving party bears a heavy burden, as motions to reopen are disfavored, especially in removal proceedings." (first quoting Li v. U.S. Att'y Gen., 488 F.3d 1371, 1374 (11th Cir. 2007); then citing Abdi v. U.S. Att'y Gen., 430 F.3d 1148, 1148 (11th Cir. 2005); Ali v. U.S. Att'y Gen., 443 F.3d 804, 813 (11th Cir. 2006); and INS v. Doherty, 502 U.S. 314, 323, 112 S.Ct. 719, 116 L.Ed.2d 823 (1992))).
We review claims of legal error, however, including claims that the BIA did not provide reasoned consideration of its decision,
A petitioner may file one, and only one motion for reopening of an order of removal. 8 U.S.C. § 1229a(c)(7)(A). This motion must be made within 90 days of the removal order's entry, or 180 days after entry of an order of removal entered
The standard for granting a motion to reopen immigration proceedings is high, and an Immigration Judge is afforded significant discretion in deciding whether to do so. Reopening may be warranted
Here, the BIA unequivocally upheld the reasoning of the IJ: "The Immigration Judge correctly determined that [Lin's] motion to reopen was untimely and numerically barred ...." The BIA also agreed with the Immigration Judge that Lin's "additional arguments in his third motion to reopen were not new or previously unavailable." The notations of the Immigration Judge observed that Lin had made "no showing [his] evidence [and] argument" were "not previously available."
That decision did not amount to an abuse of discretion. Again, the time limit on motions to reopen is subject to equitable tolling. See Avila-Santoyo, 713 F.3d at 1365. But even assuming,
Lin argues, nevertheless, that the Immigration Judge erred in finding, and the BIA erred in adopting the finding, that the fingerprint report Lin offered was not new and previously unavailable evidence. Lin says that the Immigration Judge must have believed that the fingerprint report "was in fact available in September 2014," when Lin's second motion to reopen was filed. This is a challenge to the statutory and regulatory grounds for the BIA's denial and hence one of the claims over which this Court has jurisdiction.
This Court has previously determined that the BIA abused its discretion when it denied, for failure to present previously unavailable evidence, motions to reopen presenting chronologically new evidence. In Li v. United States Attorney General, 488 F.3d 1371 (11th Cir. 2007), a Chinese national submitted evidence of intensified enforcement of China's one-child policy, including affidavits and State Department reports from years post-dating her removal order. Id. at 1375. We found that the petitioner had "evidence of changed circumstances that was not available at her original removal proceedings" and the BIA's refusal to reopen was an abuse of discretion. Id. We found the same thing in Jiang v. United States Attorney General, 568 F.3d 1252 (11th Cir. 2009), which was "startlingly" like Li. Id. at 1257.
However, we have refused to recognize an abuse of discretion in the BIA's strict application of evidentiary hurdles. Thus, in Ali v. United States Attorney General, 443 F.3d 804 (11th Cir. 2006), a panel of this Court found no abuse of discretion where the BIA refused to consider an unattested photocopy—which included a copy of a signature and seal—of a pardon from criminal charges that had made the petitioner removable. Id. at 812. There, we ruled that the petitioner "offer[ed] no compelling reason why he could not have obtained and
This case is comparable to Ali, where we could not discern an abuse of discretion. Like the petitioner there, Lin has not offered any reason, let alone a compelling one, why he could not have obtained a fingerprint analysis before his removal order, or in
Lin also says that the BIA's decision did not offer "reasoned consideration" of his claims. This is an allegation of legal error and, accordingly, we review it
We have previously described the standard for "reasoned consideration" in clear terms:
Jeune, 810 F.3d at 803 (quotations and citations omitted).
Lin's arguments can be broken down into two essential claims: (1) that the handwritten, brief reasoning of the Immigration Judge was inadequate and did not provide enough explanation for the BIA reasonably to review; and (2) that the BIA failed to address the central problem raised by Lin—that he was improperly given a second A-number under which removal was improperly ordered. But, the BIA did give "reasoned consideration" to Lin's claims.
Lin argues, in various ways, that the BIA improperly based its decision on the brief and handwritten notes of the Immigration Judge. None of these arguments suggest the absence of reasoned consideration as defined by our precedent. What is central to a showing of reasoned consideration is that the reasoning of the Immigration Judge and the BIA is logical and can be reviewed for error. Lin cites Jeune and other precedent for the mandate that a decision showing "reasoned consideration" must be capable of assessment by a reviewing court. We agree. But here, the BIA's order is capable of review. It lists the basic facts of the case, references the
Lin also seems to say that meaningful review is not possible because the Immigration Judge used a form that references an "attached decision," but provided handwritten notes instead of anything "attached." Even assuming there must be something "attached" because of the wording of the form, this argument could have been, but was not, raised before the BIA and has not been administratively exhausted. See supra Part II.
Finally, Lin argues that the BIA opinion failed to show reasoned consideration of his appeal because it did not address the central issue he raised:
As support, Lin cites to Seck v. United States Attorney General, 663 F.3d 1356 (11th Cir. 2011), where we rejected one challenge to the sufficiency of a BIA decision, holding that "the BIA's order of removal did in fact acknowledge and address the crux of [the] claim." Id. at 1366 (reversing the BIA order on other grounds).
The legal standard articulated by Lin is inapplicable and ineffective. First, Seck did not announce a rule that the BIA must address the "crux" of every claim in order to demonstrate that it gave reasoned consideration. Instead, it announced grounds on which we upheld the portion of the BIA order in question. Second, Seck was a direct appeal from an order of removal where the arguments against removal had to be addressed; it was not, as here, an appeal from a motion to
In short, as for those claims properly before this Court, we find nothing to indicate that the BIA abused its discretion or demonstrated a lack of reasoned consideration. Therefore, we must uphold its order.