Case: 18-11133   Date Filed: 04/30/2019   Page: 1 of 6


                                                        [DO NOT PUBLISH]



            IN THE UNITED STATES COURT OF APPEALS

                    FOR THE ELEVENTH CIRCUIT
                      ________________________

                            No. 18-11133
                        Non-Argument Calendar
                      ________________________

                       Agency No. A208-690-443



BEREKET OKBAZGHI GEBRENIGUS,

                                                                      Petitioner,

                                 versus

U.S. ATTORNEY GENERAL,

                                                                    Respondent.

                      ________________________

                 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, 

, 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.,

, 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.,

, 1319 (11th Cir. 2009). This review is limited to determining

whether the BIA exercised its discretion in an arbitrary or capricious manner. 

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. 

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., 

,

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.

      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.,

, 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., 

, 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 

.

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. 

n.7; 

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., 

, 1284 (11th Cir. 2007). If the

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

Att’y Gen., 

, 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 

. There is no

constitutionally protected interest in purely discretionary forms of relief. 

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

constitutionally protected interest. 

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, 

, 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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