Manes Jean-Baptiste v. U.S. Attorney General

USCA11 Case: 23-11046 Document: 38-1 Date Filed: 09/26/2024 Page: 1 of 12

[DO NOT PUBLISH]

In the

United States Court of Appeals

For the Eleventh Circuit

____________________

No. 23-11046

Non-Argument Calendar

____________________

MANES JEAN-BAPTISTE,

Petitioner,

versus

U.S. ATTORNEY GENERAL,

Respondent.

____________________

Petition for Review of a Decision of the

Board of Immigration Appeals

Agency No. A071-898-487

____________________

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2 Opinion of the Court 23-11046

Before JORDAN, LAGOA, and DUBINA, Circuit Judges.

PER CURIAM:

Petitioner Manes Jean-Baptiste petitions for review of the

March 3, 2023, order of the Board of Immigration Appeals (“BIA”)

denying his construed motion for sua sponte reconsideration of its

April 7, 2022, order dismissing his administrative appeal. Jean-Bap-

tiste argues that the BIA abused its discretion in denying sua sponte

reconsideration because he did not have adequate notice of the

proceedings on remand or of the briefing schedule to argue the

merits of his appeal. Additionally, he argues that the instant peti-

tion for review should be construed as seeking review of both the

March 3, 2023, order denying reconsideration and the April 7, 2022,

order dismissing his underlying claims that his Florida cocaine of-

fense did not disqualify him from certain forms of relief from re-

moval. Having read the parties’ briefs and reviewed the record, we

dismiss the petitions for review for lack of jurisdiction.

I.

Before addressing the merits of a petitioner’s claims, we

must ensure that we have jurisdiction over the appeal. Guzman-

Munoz v. U.S. Att’y Gen., 733 F.3d 1311, 1313 (11th Cir. 2013). We

determine de novo whether we have subject matter jurisdiction. Id.

II.

In immigration proceedings, “[t]he petition for review must

be filed not later than 30 days after the date of the final order of

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23-11046 Opinion of the Court 3

removal.” Immigration and National Act (“INA”) § 242(b)(1), 8

U.S.C. § 1252(b)(1). A petitioner may file a motion to reconsider

the decision, explaining an error in the proceedings, within the

same 30 days. See INA § 240(c)(6), 8 U.S.C. § 1229a(c)(6); see also 8

C.F.R. § 1003.2(b)(2). A petitioner may also file to reopen the pro-

ceedings, supported by new facts, within 90 days. See INA

§ 240(c)(7)(B), (C)(i); 8 U.S.C. § 1229a(c)(7)(B), (C)(i); 8 C.F.R.

§ 1003.2(c)(1).

In Stone v. I.N.S., the Supreme Court held that a predecessor

statute governing the time to file a petition for review was “juris-

dictional in nature and must be construed with strict fidelity to [its]

terms.” 514 U.S. 386, 405, 115 S. Ct. 1537, 1544 (1995). The Court

explained that “[t]his is all the more true of statutory provisions

specifying the timing of review, for those time limits are, as [it has]

often stated, mandatory and jurisdictional, and are not subject to

equitable tolling.” Id. at 405, 115 S. Ct. at 1544 (quotation marks

and citation omitted). We have relied on Stone in concluding that

the 30-day deadline in INA § 242(b)(1), 8 U.S.C. § 1252(b)(1), is ju-

risdictional and not subject to equitable tolling. See, e.g., Dakane v.

U.S. Att’y Gen., 371 F.3d 771, 773 n.3 (11th Cir. 2004).

More recently, the Supreme Court has emphasized the dif-

ference between a jurisdictional requirement and a nonjurisdic-

tional claims-processing rule, noting that it had been “less than me-

ticulous” in its use of the terms “mandatory and jurisdictional” in

the past. Hamer v. Neighborhood Hous. Servs. of Chi., 583 U.S. 17,

26-27, 138 S. Ct. 13, 21 (2017) (quotation marks omitted). The

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4 Opinion of the Court 23-11046

Supreme Court explained that a “jurisdictional defect is not subject

to waiver or forfeiture,” and “courts are obligated to notice juris-

dictional issues and raise them on their own initiative.” Id. at 20,

138 S. Ct. at 17. On the other hand, mandatory claims-processing

rules must be enforced if properly invoked by a party, but may be

waived or forfeited. Id., 138 S. Ct. at 17. Given this distinction, the

Supreme Court has “endeavored to bring some discipline to use of

the jurisdictional label.” Boechler, P.C. v. Comm’r of Internal Revenue,

596 U.S. 199, 203, 142 S. Ct. 1493, 1497 (2022) (quotation marks

omitted). To that end, the Supreme Court has stated that a proce-

dural requirement is jurisdictional “only if Congress clearly states

that it is.” Id. (internal quotation marks omitted).

In Santos-Zacaria v. Garland, the Supreme Court held that the

provision of the INA that requires administrative exhaustion,

§ 242(d)(1), 8 U.S.C. § 1252(d)(1), is not jurisdictional. 598 U.S. 411,

413, 431, 143 S. Ct. 1103, 1120 (2023). The Court concluded that

INA § 242(d)(1), 8 U.S.C. § 1252(d)(1), lacks the “clear statement”

necessary to qualify as jurisdictional because (1) exhaustion re-

quirements are ordinarily not jurisdictional, and (2) the statute does

not contain plainly jurisdictional terms, such as “no court shall

have jurisdiction,” despite using that phrase elsewhere in INA §

242, 8 U.S.C. § 1252. Id. at 417-19, 143 S. Ct. at 1112-13. The Court

then explained that Stone did not support concluding that INA §

242(d)(1), 8 U.S.C. § 1252(d)(1), was jurisdictional, as in addition to

not addressing the exhaustion requirement, Stone (1) did not “at-

tend[] to the distinction between ‘jurisdictional’ rules (as [the

Court] understand[s] them today) and nonjurisdictional but

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23-11046 Opinion of the Court 5

mandatory ones,” and (2) predated the Court’s cases that brought

“discipline” to the term “jurisdictional.” Id. at 421-22, 143 S. Ct. at

1115.

Under the prior panel precedent rule, we must follow our

prior binding precedent “unless and until it is overruled by this

court en banc or by the Supreme Court.” United States v. Martinez,

606 F.3d 1303, 1305 (11th Cir. 2010) (quotation marks omitted).

“An intervening Supreme Court decision abrogates our precedent

only if the intervening decision is both clearly on point and clearly

contrary to our earlier decision.” United States v. Dubois, 94 F.4th

1284, 1293 (11th Cir. 2024) (quotation marks omitted). “If the Su-

preme Court never discussed our precedent and did not otherwise

comment on the precise issue before the prior panel, our precedent

remains binding.” Id. (quotation marks and brackets omitted). We

have noted that “there is, of course, an important difference be-

tween the holding in a case and the reasoning that supports that

holding.” Atl. Sounding Co. v. Townsend, 496 F.3d 1282, 1284 (11th

Cir. 2007) (quotation marks and alteration omitted). “[T]hat the

reasoning of an intervening high court decision is at odds with that

of our prior decision is no basis for a panel to depart from our prior

decision.” Id.

We have not addressed in a published opinion whether San-

tos-Zacaria abrogated Stone and our precedents relying on Stone to

hold that INA § 242(b)(1), 8 U.S.C. § 1252(b)(1), is jurisdictional.

Other circuits have reached differing conclusions regarding

whether Santos-Zacaria abrogated their prior precedent treating

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6 Opinion of the Court 23-11046

INA § 242(b)(1), 8 U.S.C. § 1252(b)(1), as jurisdictional, with the

Fifth and Ninth Circuits concluding that it did, and the Fourth and

Seventh Circuits concluding that it did not. See, e.g., Argueta-Her-

nandez v. Garland, 87 F.4th 698, 705 (5th Cir. 2023) (deadline is not

jurisdictional because Stone did not establish that the exhaustion re-

quirement was jurisdictional in nature); Alonso-Juarez v. Garland, 80

F.4th 1039, 1047 (9th Cir. 2023) (same); but see Salgado v. Garland,

69 F.4th 179, 181 n.1 (4th Cir. 2023) (holding that because the Su-

preme Court has not overruled Stone, it is bound to apply it unless

and until the Supreme Court decides to the contrary); F.J.A.P. v.

Garland, 94 F.4th 620, 626 (7th Cir. 2024) (stating that although San-

tos-Zacaria “called the jurisdictionality of §1252(b)(1) into ques-

tion”, it did not directly overrule Stone; thus, it was obligated to

continue applying Stone).

Based on the record and our existing precedents, we con-

clude that we lack jurisdiction to consider the merits of the BIA’s

April 7, 2022, order. Jean-Baptiste indicated that he appealed from

the March 3, 2023, order only, although he raised the merits of the

April 7, 2022, order in his briefs on appeal and argued that he should

be permitted to challenge the April order in the instant appeal be-

cause he was unable to seek review of the decision due to lack of

notice. Nevertheless, Jean-Baptiste’s petition for review was not

timely to challenge the April order because the deadline to appeal

from that order was May 7, 2022. Thus, because Jean-Baptiste’s

petition for review did not mention, and was not timely filed, from

that April order, and our prior precedents hold that the 30-day

deadline in INA § 242(b)(1), 8 U.S.C. § 1252(b)(1) to petition for

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23-11046 Opinion of the Court 7

review from a BIA order is a jurisdictional requirement, and be-

cause those precedents were not disturbed by Santos-Zacaria, we

lack jurisdiction to consider the merits of the BIA’s April order. See

INA § 242(b)(1), 8 U.S.C. § 1252(b)(1). See Santos-Zacaria, 598 U.S.

at 413, 431, 143 S. Ct. at 1103, 1120; Stone, 514 U.S. at 405, 115 S.

Ct. at 1549; Dakane, 371 F.3d at 773 n.3; Dubois, 94 F.4th at 1293.

III.

Jean-Baptiste contends on appeal that the court has jurisdic-

tion to correct clear errors of law in removal proceedings, and this

court should intervene to address the procedural problems caused

by the BIA and entertain his arguments on the merits in the instant

appeal. Jean-Baptiste argues that the BIA failed to properly notify

him of the remanded proceedings and sent information to his for-

mer detention center years after he was deported to Haiti. He also

claims that the BIA failed to notify his counsel of the remanded

proceedings, and that the BIA erred in construing his request to re-

issue the briefing schedule as a motion for reconsideration. In re-

sponse, the government contends that the court lacks jurisdiction

to review the BIA’s March 3, 2023, order, citing BIA decisions hold-

ing that sua sponte reconsideration is an extraordinary remedy that

is not proper for curing filing defects or otherwise avoiding regula-

tions. It states that the court generally lacks jurisdiction to review

the BIA’s decision denying sua sponte reconsideration because the

relevant regulations provide no meaningful benchmark for evalu-

ating the agency’s use of its discretionary power.

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8 Opinion of the Court 23-11046

The court is restricted from reviewing certain discretionary

decisions by administrative agencies. Under the Administrative

Procedure Act, judicial review is not available when an agency ac-

tion is committed to agency discretion by law. Citizens to Preserve

Overton Park, Inc. v. Volpe, 401 U.S. 402, 410, 91 S. Ct. 814, 820

(1971), abrogated on other grounds by Califano v. Sanders, 430 U.S. 99,

105, 97 S. Ct. 980, 984 (1977). In other words, courts cannot review

an agency action if the relevant statute “is drawn so that a court

would have no meaningful standard against which to judge the

agency’s exercise of discretion.” Heckler v. Chaney, 470 U.S. 821,

830, 105 S. Ct. 1649, 1655 (1985).

The INA provides generally that the “Attorney General shall

establish such regulations . . . as the Attorney General determines

to be necessary for carrying out” the statute. INA § 103(g)(2), 8

U.S.C. § 1103(g)(2). This provision forms the statutory basis for 8

C.F.R. § 1003.2(a), which states that the BIA “may at any time reo-

pen or reconsider … any case in which it has rendered a decision.”

8 C.F.R. § 1003.2(a) (2022). The regulation emphasizes that “[t]he

decision to grant or deny a motion to reopen or reconsider is within

the discretion” of the BIA and the BIA “has discretion to deny a

motion to reopen even if the moving party has made out a prima

facie case for relief.” Id.

We have held that we lack jurisdiction to hear a petition for

review of the BIA’s discretionary denial of a motion to reopen re-

moval proceedings sua sponte. See Lenis v. U.S. Att’y Gen., 525 F.3d

1291, 1294 (11th Cir. 2008). We explained that such appeals were

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23-11046 Opinion of the Court 9

not subject to judicial review because the BIA’s discretionary

power to sua sponte reopen or reconsider earlier proceedings de-

rived from INA § 103(g)(2), 8 U.S.C. § 1103(g)(2), and 8 C.F.R.

§ 1003.2(a) and neither the statute nor the regulation provided a

standard to govern whether the BIA abused its discretion in deny-

ing relief. Id. at 1292-94. Although the court left open the question

of whether “an appellate court may have jurisdiction over consti-

tutional claims related to the BIA’s decision not to exercise its sua

sponte power,” Id. at 1294 n.7, we have since observed that we may

retain jurisdiction where an appellant raises constitutional claims

based on the BIA’s decision denying his motion to reopen proceed-

ings sua sponte. Bing Quan Lin v. U.S. Att’y Gen., 881 F.3d 860, 871

(11th Cir. 2018).

Noncitizens are entitled to due process of the law in removal

proceedings. See, e.g., Fernandez-Bernal v. Att’y Gen. of U.S., 257 F.3d

1304, 1310 n.8 (11th Cir. 2001). Due process requires that nonciti-

zens be given notice and an opportunity to be heard. See id. In

order to establish a due process violation, the noncitizen must

show that he was deprived of liberty without due process due to an

error in the removal proceedings that caused him substantial prej-

udice. Gonzalez-Oropeza v. U.S. Att’y Gen., 321 F.3d 1331, 1333 (11th

Cir. 2003), overruled on other grounds by Patel v. Att’y Gen. of U.S., 971

F.3d 1258 (11th Cir. 2020). We generally do not permit constitu-

tional due process claims based on the denial of discretionary forms

of relief. See, e.g., Ponce Flores v. Att’y Gen. of U.S., 64 F.4th 1208,

1220 (11th Cir. 2023) (cancellation of removal); Garcia v. Att’y Gen.

of U.S., 329 F.3d 1217, 1223-24 (11th Cir. 2003) (waiver of

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10 Opinion of the Court 23-11046

excludability); Alvarez Acosta v. U.S. Att’y Gen., 524 F.3d 1191, 1197

(11th Cir. 2008) (continuance of removal proceedings and adjust-

ment of status).

The BIA presumes receipt of a notice sent by regular mail if

the notice was properly addressed and mailed, but this presump-

tion is weaker than that applied to a notice sent by certified mail.

Matter of M-R-A-, 24 I. & N. Dec. 665, 673 (BIA 2008). In evaluating

whether a noncitizen has rebutted the presumption of receipt by

regular mail, the BIA must consider all relevant evidence. Id. at

674. It may consider several factors, including:

(1) the respondent’s affidavit; (2) affidavits from fam-

ily members or other individuals who are knowledge-

able about the facts relevant to whether notice was

received; (3) the respondent’s actions upon learning

of the in absentia order, and whether due diligence

was exercised in seeking to redress the situation; (4)

any prior affirmative application for relief, indicating

that the respondent had an incentive to appear; (5)

any prior application for relief filed with the Immigra-

tion Court or any prima facie evidence in the record

or the respondent’s motion of statutory eligibility for

relief, indicating that the respondent had an incentive

to appear; (6) the respondent’s previous attendance at

Immigration Court hearings, if applicable; and (7)

any other circumstances or evidence indicating possi-

ble nonreceipt of notice.

Id. It has emphasized, however, that the foregoing is a case-by-case

inquiry, and that an immigration judge is “neither required to deny

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23-11046 Opinion of the Court 11

reopening if exactly such evidence is not provided nor obliged to

grant a motion, even if every type of evidence is submitted.” Id.

An appellant abandons a claim when he “does not plainly

and prominently raise it, for instance by devoting a discrete section

of his argument to those claims,” makes it only in a passing refer-

ence, or addresses it in a perfunctory manner without reasoning or

citations to authorities in support. Sapuppo v. Allstate Floridian Ins.,

Co., 739 F.3d 678, 681 (11th Cir. 2014) (quotation marks omitted).

We have applied these principles from Sapuppo in immigration ap-

peals. See, e.g., Islam v. Sec’y, Dep’t of Homeland Sec., 997 F.3d 1333,

1343, 1346 n.5, 1347 (11th Cir. 2021) (declining to discuss an argu-

ment not fully briefed on appeal); Stevens v. Osuna, 877 F.3d 1293,

1309 n.14 (11th Cir. 2017) (same). However, we have recognized a

distinction between two types of abandonment, forfeiture of issues

by failing to make a timely assertion of rights and waiver of issues

by intentionally relinquishing known rights. United States v. Camp-

bell, 26 F.4th 860, 872 (11th Cir.) (en banc), cert. denied, 143 S. Ct. 95

(2022). Courts may “resurrect” forfeited issues sua sponte in “ex-

traordinary circumstances” because the abandonment rule is pru-

dential, rather than jurisdictional. Id. at 872-73 (quotation marks

omitted).

Based on the record, we conclude that we lack jurisdiction

to review the BIA’s March 3, 2023, order denying sua sponte recon-

sideration. The regulation that grants the BIA authority to reopen

or reconsider a decision sua sponte does not provide a standard for

the exercise of judicial review over this discretionary decision, and

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12 Opinion of the Court 23-11046

Jean-Baptiste has not raised a colorable claim of a constitutional vi-

olation arising from the denial of sua sponte reconsideration. See 8

C.F.R. § 1003.2(a); Lenis, 525 F.3d at 1294; Bing Quan Lin, 881 F.3d

at 871. Jean-Baptiste did not present his claims of procedural error

in constitutional due process terms in his briefs on appeal, and he

failed to present a colorable due process claim based on the BIA’s

failure to alert his attorneys to the briefing schedule. He has not

presented evidence rebutting the presumption that his attorneys

received the notice of remand and failed to follow its express in-

structions to enter an appearance within 15 days, regardless of any

general guidance about notices of appearance in the BIA manual,

which led the BIA to assume that they no longer represented Jean-

Baptiste.

Accordingly, based on the aforementioned reasons, we dis-

miss for lack of jurisdiction Jean-Baptiste’s petition for review of

the BIA’s March 3, 2023, order denying sua sponte reconsideration

of its underlying decision.

PETITION DISMISSED.