USCA11 Case: 21-12545 Date Filed: 05/12/2022 Page: 1 of 4

[DO NOT PUBLISH] In the United States Court of Appeals For the Eleventh Circuit

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No. 21-12545 Non-Argument Calendar ____________________

JUAN JOSE GUSHIKEN AYALA, Petitioner, versus U.S. ATTORNEY GENERAL,

Respondent.

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Petition for Review of a Decision of the Board of Immigration Appeals Agency No. A087-133-525 ____________________ USCA11 Case: 21-12545 Date Filed: 05/12/2022 Page: 2 of 4

2 Opinion of the Court 21-12545

Before JILL PRYOR, BRANCH, and MARCUS, Circuit Judges. PER CURIAM: Juan Gushiken Ayala appeals the Board of Immigration Ap- peals’s (“BIA”) denial of his motion to reopen his removal proceed- ings pursuant to its sua sponte authority. But because the BIA’s decision whether to reopen sua sponte is committed to the agency’s discretion, we dismiss Ayala’s petition for review for lack of jurisdiction. We review de novo our own subject matter jurisdiction. Jeune v. U.S. Att’y Gen., 810 F.3d 792, 799 (11th Cir. 2016). Gener- ally, when an appellant fails to offer argument on an issue, that is- sue is deemed abandoned. Lapaix v. U.S. Att’y Gen., 605 F.3d 1138, 1145 (11th Cir. 2010). Likewise, arguments not raised in a peti- tioner’s initial brief are deemed abandoned. Timson v. Sampson, 518 F.3d 870, 874 (11th Cir. 2008). The Immigration and Nationality Act (“INA”) permits a non-citizen to file one motion to reopen removal proceedings. See 8 U.S.C. § 1229a(c)(7)(A); 8 C.F.R. § 1003.2(c)(2). Subject to certain statutory exceptions and equitable tolling, a motion to reopen must be filed within 90 days of the entry of a final administrative removal order. 8 U.S.C. § 1229a(c)(7)(C)(i); 8 C.F.R. § 1003.2(c)(2); Butka v. U.S. Att’y Gen., 827 F.3d 1278, 1283 (11th Cir. 2016). We have jurisdiction to review the BIA’s denial of a petitioner’s motion for statutory reopening. Butka, 827 F.3d at 1283. USCA11 Case: 21-12545 Date Filed: 05/12/2022 Page: 3 of 4

21-12545 Opinion of the Court 3

The BIA also has the authority to reopen removal proceed- ings sua sponte at any time. Id.; 8 C.F.R. § 1003.2(a). No statute expressly authorizes the BIA to reopen cases sua sponte; rather, the regulation at issue derives from a statute that grants general au- thority over immigration and nationalization matters to the Attor- ney General and sets no standard for the Attorney General’s deci- sion-making in this context. Lenis v. U.S. Att’y Gen., 525 F.3d 1291, 1293 (11th Cir. 2008). A non-citizen can file a written motion with the BIA asking it to exercise its sua sponte authority to reopen re- moval proceedings. Butka, 827 F.3d at 1283; 8 C.F.R. § 1003.2(a). Whether to grant or deny such a motion is entirely within the BIA’s discretion. Lenis, 525 F.3d at 1293–94. Unlike the denial of statu- tory reopening, we lack jurisdiction to review the BIA’s denial of a motion to reopen pursuant to its sua sponte authority because such a determination is committed to agency discretion by law and there is no meaningful standard against which to judge the agency’s ex- ercise of discretion. Id.; Butka, 827 F.3d at 1285–86. We have ex- pressly left open the question of whether we may exercise jurisdic- tion over constitutional claims related to an underlying request for sua sponte reopening. Butka, 827 F.3d at 1285 n.6 (citing Lenis, 525 F.3d at 1294 n.7). In asserting a constitutional claim, a peti- tioner must allege at least a colorable constitutional violation. Arias v. U.S. Att’y Gen., 482 F.3d 1281, 1284 (11th Cir. 2007). Due process claims must assert a deprivation of a constitu- tionally protected liberty or property interest. Bing Quan Lin v. U.S. Att’y Gen., 881 F.3d 860, 868–69 (11th Cir. 2018). There is no USCA11 Case: 21-12545 Date Filed: 05/12/2022 Page: 4 of 4

4 Opinion of the Court 21-12545

constitutionally protected interest in purely discretionary forms of relief -- including motions to reopen. Id. at 869; Scheerer v. U.S. Att’y Gen., 513 F.3d 1244, 1253 (11th Cir. 2008). Here, Ayala’s motion to the BIA asked that it exercise its dis- cretion to sua sponte reopen his cancellation of removal proceed- ings under 8 C.F.R. § 1103.2(c). 1 However, we lack jurisdiction over this claim. See Lenis, 525 F.3d at 1294 (holding that we lack jurisdiction to review the BIA’s denial of a motion to reopen sua sponte). And while Ayala argues in his reply brief that he brought both legal claims and a constitutional claim premised on due pro- cess violations, his initial brief before us does not develop a due process claim nor any other constitutional claim. Therefore, he abandoned any arguments concerning a constitutional claim and we decline to consider them. Timson, 518 F.3d at 874. In any event, Ayala cannot establish a colorable due process claim be- cause, as our case law has established, he possesses no constitution- ally protected liberty or property interest in a motion to reopen sua sponte. See Bing Quan Lin, 881 F.3d at 868–69; Scheerer, 513 F.3d at 1253. PETITION DISMISSED.

1 Indeed, Ayala’s motion only invoked the BIA’s sua sponte authority and made no refence to statutory reopening, nor did it cite to the statute, 8 U.S.C. § 1229a(c)(7)(A). As a result, Ayala abandoned any claim that his motion should have been construed as one seeking statutory reopening. See Lapaix, 605 F.3d at 1145.