Martha Lidia Gutierrez-Castro v. U.S. Attorney General

       USCA11 Case: 20-11505    Date Filed: 12/29/2020      Page: 1 of 4

                                                         [DO NOT PUBLISH]


                   FOR THE ELEVENTH CIRCUIT

                           No. 20-11505
                       Non-Argument Calendar

                       Agency No. A208-117-093

G. L.Y. M.,






                 Petition for Review of a Decision of the
                      Board of Immigration Appeals

                          (December 29, 2020)
          USCA11 Case: 20-11505       Date Filed: 12/29/2020    Page: 2 of 4

Before JORDAN, NEWSOM and GRANT, Circuit Judges.


      Martha Lidia Gutierrez-Castro and her two daughters seek review of the

Board of Immigration Appeals’s (BIA) decision affirming the denial of Gutierrez-

Castro’s motion to reopen her removal proceedings sua sponte. On July 30, 2015,

Gutierrez-Castro appeared pro se at a master hearing before the Atlanta

Immigration Court. The immigration judge (IJ) found that she failed to

demonstrate eligibility for relief and ordered her and her children removed to

Guatemala. Of critical importance to this appeal, Gutierrez-Castro did not appeal

that decision to the BIA. Instead, nearly four years later, she filed a “Motion to

Reopen Removal Proceedings Pursuant to Sua Sponte Authority” with the Atlanta

Immigration Court. The IJ denied her motion, and on appeal, the BIA affirmed.

Gutierrez-Castro now seeks review of that order before us.

      She makes three arguments in her petition for review. First, she contends

that the IJ from her 2015 hearing denied her due process by failing to provide her

with a list of free legal services. Second, she argues that the same IJ violated her

right to a fair hearing because the judge was unfair and biased. And third, she says

that the BIA’s decision affirming the denial of her motion to sua sponte reopen her

removal proceedings violated due process because it failed to give sufficient

weight to the statements in her motion.

          USCA11 Case: 20-11505       Date Filed: 12/29/2020   Page: 3 of 4

      Whatever the merits of Gutierrez-Castro’s claims, we lack jurisdiction to

decide them. Two principles control here. First, we lack jurisdiction to review

final orders in immigration cases unless “the alien has exhausted all administrative

remedies available to the alien as of right.” Immigration and Nationality Act

§ 242(d)(1), 8 U.S.C. § 1252(d)(1). If a petitioner has failed to exhaust her

administrative remedies by not raising an issue before the BIA, we lack jurisdiction

to consider the claim. Amaya-Artunduaga v. U.S. Att’y Gen., 463 F.3d 1247, 1250

(11th Cir. 2006). Second, the denial of a motion to reopen removal proceedings

sua sponte is unreviewable because it is committed to agency discretion. Lenis v.

U.S. Att’y Gen., 525 F.3d 1291, 1293–94 (11th Cir. 2008).

      Gutierrez-Castro’s first two arguments are unexhausted challenges to the IJ’s

2015 decision. She did not appeal that decision to the BIA, so we have no power

to decide her challenges now. It does not change matters that Gutierrez-Castro

couches her arguments in constitutional terms. To be sure, we’ve said that some

constitutional challenges do not require administrative exhaustion. Bing Quan Lin

v. U.S. Att’y Gen., 881 F.3d 860, 867–68 (11th Cir. 2018). But others do. “Where

the claim is within the purview of the BIA which can provide a remedy, the

exhaustion requirement applies with full force.” Id. at 868 (quoting Sundar v.

I.N.S., 328 F.3d 1320, 1325 (11th Cir. 2003)). Thus, “[w]here a procedural due

process claim falls within the immigration courts’ power to review and provide a

          USCA11 Case: 20-11505      Date Filed: 12/29/2020    Page: 4 of 4

remedy, the claim must be exhausted before it can be considered by this Court.”

Bing Quan Lin, 881 F.3d at 868. Gutierrez-Castro’s claims are precisely the sort of

due process claims that the BIA could have considered: They challenge the

fairness of the procedures that the IJ accorded her during her 2015 hearing and do

not raise “a larger challenge to the immigration process beyond the power of the

BIA to address.” Id. Because her claims are unexhausted, we lack jurisdiction to

consider them.

      Gutierrez-Castro’s third argument challenges the BIA’s denial of her motion

to reopen sua sponte. But that decision is committed to agency discretion, and thus

is unreviewable.

      For the foregoing reasons, we dismiss the petition for lack of jurisdiction.



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