for Review of a Decision of the Board of Immigration Appeals
Agency No. A070-651-451
MARCUS and NEWSOM, Circuit Judges, and MOORE, [*] District Judge.
MARCUS, Circuit Judge.
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.
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 on the I-122 form, the name "LIN Ping Chuan,
" and a birthdate of April 1, 1955. Lin claims that he
did not understand he was to appear before the Immigration
Judge; instead he boarded a plane bound for New York City.
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 in absentia.
timely filed a motion to reopen the removal proceedings, his
first motion to reopen. Lin claims this motion was
also prepared by an unlicensed practitioner of law and that
he did not understand its contents. The 1998 motion to reopen
was denied by the Immigration Judge because Lin failed to
appear at the hearing after being given proper notice, did
not provide any reasons for his failure to appear, and
demonstrated no exceptional circumstances otherwise
warranting reopening. Lin did not appeal the decision denying
his first motion to reopen.
continued to reside in the United States. In February 2014,
the government approved an I-130 application,  filed by
Lin's U.S.-citizen son, for adjustment of Lin's
immigration status. That application was filed under the
A-number issued in connection with Lin's asylum
application. Notably, Lin would not be eligible to pursue an
adjustment of his status if he had entered the United States
without inspection. Rather, in order to be eligible, Lin must
have been paroled into the United States. 8 U.S.C. §
1255 (making adjustment of status available to "an alien
who was inspected and admitted or paroled into the United
States, " 8 U.S.C. § 1255(a), or for those entering
the United States without inspection who are the beneficiary
of an application for adjustment of status filed "on or
before April 30, 2001, " 8 U.S.C. § 1255(i)(1)(B),
which Lin is not).
received approval of the I-130, in 2014 Lin filed his
second motion to reopen removal proceedings. This
time, Lin argued, and attached an affidavit attesting, that
he had been paroled into the United States and given an
A-number under the erroneously spelled name "Ping
Chuan" Lin. Because he had been issued an A-number in
connection with that entry, Lin said, and had become an
applicant for admission placed in exclusion proceedings, it
was inappropriate to order him removed under the subsequently
assigned A-number. An Immigration Judge denied Lin's
second motion to reopen, finding that there was "[n]o
evidence . . . submitted to establish" that Lin was
indeed the "Ping Chuan" who had entered the country
in 1991, that Lin's affidavit did "not track"
the record in his case, and that Lin was a fugitive from
justice because he had failed to inform the court of his
then filed his third motion to reopen in February
2016, offering similar arguments about why reopening was
appropriate. He included an updated affidavit and a
fingerprint analysis showing that fingerprints taken from the
person who had entered at Honolulu as "Ping Chuan"
Lin matched his own.
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 2nd [motion to
reopen] (no appeal)[.] This will be denied as untimely [and]
because of previously filed motions[.] 8 CFR §
1003.23(b)[illegible][.] No showing evidence [and] argument was
not previously available[.]" Although a box is checked
that explains the motion is denied "for the reasons
indicated in the attached decision, " no additional
decision, separate from the grounds handwritten on the form
itself, appears in the certified Administrative Record.
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 sua
sponte its removal proceedings.
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).
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 only if . . .
the alien has exhausted all administrative remedies available
to the alien as of right." (emphasis added)). We have
held that failure to raise an issue to the BIA constitutes a
failure to exhaust. See Jeune v. U.S. Att'y
Gen., 810 F.3d 792, 800 (11th Cir. 2016) ("[W]hen a
petitioner has neglected to assert an error before the BIA
that he later attempts to raise before us, the petitioner has
failed to exhaust his administrative remedies." (citing
Amaya-Artunduaga, 463 F.3d at 1250-51)). This Court
has also determined that the failure to exhaust is
jurisdictional, "so we lack jurisdiction to consider
claims that have not been raised before the BIA."
Sundar v. I.N.S., 328 F.3d 1320, 1323 (11th Cir.
2003); see also Amaya-Artunduaga, 463 F.3d at 1250
(citing Sundar, 328 F.3d at 1323); Indrawati v.
U.S. Att'y Gen., 779 F.3d 1284, 1297 (11th Cir.
2015) (citing Amaya-Artunduaga, 463 F.3d at 1250).
Thus, while we are obliged to consider those issues that have
been properly presented in immigration proceedings and, where
necessary, appealed to the Board of Immigration Appeals, we
cannot consider issues that could have been, but were not
properly raised in immigration proceedings and appealed to
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.
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 sua sponte legally
incorrect, reasoning that "due process requires that
proceedings improvidently commenced may be terminated at any
time." Finally, he contends that "[a]n Order of
Removal which is premised on a false allegation and which
produces an unjust result violates due process."
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
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 ...