Robert Kesse v. U.S. Attorney General

USCA11 Case: 21-14405 Date Filed: 11/08/2022 Page: 1 of 6 [DO NOT PUBLISH] In the United States Court of Appeals For the Eleventh Circuit ____________________ No. 21-14405 Non-Argument Calendar ____________________ ROBERT KESSE, Petitioner, versus U.S. ATTORNEY GENERAL, Respondent. ____________________ Petition for Review of a Decision of the Board of Immigration Appeals Agency No. 096-441-960 ____________________ USCA11 Case: 21-14405 Date Filed: 11/08/2022 Page: 2 of 6 2 Opinion of the Court 21-14405 Before WILSON, LUCK, and MARCUS, Circuit Judges. PER CURIAM: Robert Kesse, an Ivory Coast national proceeding through counsel, seeks review of the Board of Immigration Appeals’ (“BIA”) final order affirming the Immigration Judge’s (“IJ”) denial of his motion to reopen his removal proceedings. Before he filed the mo- tion to reopen, the IJ had granted him voluntary departure and en- tered an alternate order of removal, but Kesse failed to depart by the voluntary departure deadline. In the instant petition, Kesse ar- gues that: (1) the penalties for failing to voluntarily depart -- which make him ineligible for adjustment of status for 10 years -- do not apply to him because the government failed to remove him after he provided his plane ticket and luggage and signed a request for travel documents; and (2) the BIA erred by determining that his motion was untimely. After careful review, we deny the petition for review. I. We only review the final BIA determination unless the BIA expressly adopts the IJ’s decision or relies upon its reasoning. Tang v. U.S. Att’y Gen., 578 F.3d 1270, 1275 (11th Cir. 2009). We have an obligation to inquire into our own jurisdiction sua sponte, and we review jurisdictional questions de novo. Lin v. U.S. Att’y Gen., 881 F.3d 860, 866 (11th Cir. 2018). We lack jurisdiction to review a BIA decision not to sua sponte reopen removal proceedings, but USCA11 Case: 21-14405 Date Filed: 11/08/2022 Page: 3 of 6 21-14405 Opinion of the Court 3 we can consider the denial of a motion to reopen pursuant to stat- utory requirements, the BIA’s legal reasoning, and the sufficiency of the decision. Id. at 871. We review the denial of a motion to reopen removal pro- ceedings for abuse of discretion, but review claims of legal error de novo. Id. at 872. Eligibility for adjustment of status is a legal con- clusion. See Alvarez Acosta v. U.S. Att’y Gen., 524 F.3d 1191, 1197 n.14 (11th Cir. 2008). The BIA abuses its discretion if it exercises its discretion arbitrarily or capriciously. Lin, 881 F.3d at 872. The party moving to reopen bears a heavy burden because those mo- tions are disfavored, especially in removal proceedings. Id. When a movant seeks to adjust his status, the BIA has discretion to deny the motion because he failed to establish a prima facie case of eligi- bility for adjustment of status. Chacku v. U.S. Att’y Gen., 555 F.3d 1281, 1286 (11th Cir. 2008). The BIA generally cannot engage in de novo factfinding on appeal. See 8 C.F.R. § 1003.1(d)(3). We review …

Original document
Source: All recent Immigration Decisions In All the U.S. Courts of Appeals