Eleventh Circuit: No Jurisdiction to Review Denial of a Criminal Alien’s Motion to Reopen Absent a Colorable Question of Law or Constitutional Claim

1. Introduction

In Miguel Fernandez v. U.S. Attorney General (11th Cir. Sept. 9, 2026) (unpublished), Miguel Angel Fernandez, a Cuban lawful permanent resident, petitioned for review of the Board of Immigration Appeals’ (“BIA”) denial of his second motion to reopen removal proceedings.

Fernandez’s removability stemmed from a 2008 Florida conviction for maintaining a “continuing criminal enterprise” tied to large-scale marijuana trafficking and an armed delivery incident. DHS charged him as removable on three grounds: (1) firearms offense, (2) controlled-substance offense, and (3) aggravated felony illicit trafficking. He waived appeal of the removal order.

Years later, Fernandez attempted to reopen based on intervening Eleventh Circuit case law (including Cintron v. United States Attorney General) and sought to overcome statutory time/number limits via equitable tolling grounded in alleged ineffective assistance (invoking Matter of Lozada). The central appellate issue became threshold: jurisdiction under the INA’s criminal-alien review bar.

2. Summary of the Opinion

The Eleventh Circuit dismissed the petition for lack of jurisdiction under 8 U.S.C. § 1252(a)(2)(C), holding that Fernandez did not present a colorable constitutional claim or question of law sufficient to trigger the saving clause in § 1252(a)(2)(D).

The court concluded that:

  • Fernandez’s claim that the BIA lacked discretion to deny reopening after IIRIRA had no “possible validity” in light of Kucana v. Holder.
  • His argument that the BIA abused its discretion by weighing criminal history against reopening was a non-reviewable “garden-variety” abuse-of-discretion challenge under Alvarez-Acosta v. U.S. Att’y Gen., not a legal question under § 1252(a)(2)(D).

3. Analysis

3.1. Precedents Cited

Jurisdictional framework and obligation to police jurisdiction

  • Patchak v. Zinke: Used for the baseline proposition that federal judicial power requires a congressional grant of jurisdiction. The panel uses it to frame the analysis: jurisdiction must exist before reaching the merits.
  • Santos-Zacaria v. Garland: Cited for two key propositions: (i) jurisdictional limits must be enforced sua sponte even if waived/forfeited, and (ii) reopening/reconsideration are discretionary. This supports both the court’s duty to dismiss and its rejection of the “no discretion” theory.
  • Gelin v. U.S. Att’y Gen.: Invoked for the sequencing principle that the court must resolve jurisdiction before engaging the petitioner’s arguments.
  • Dupree v. Owens and United States v. Iguaran: Support de novo review of subject-matter jurisdiction, including when raised for the first time on appeal.

Jurisdiction over motions to reopen and the criminal-alien bar

  • Patel v. U.S. Att’y Gen. (2003): Confirms that § 1252(a)(1) jurisdiction over “final orders of removal” includes review of orders denying motions to reopen—but only to the extent jurisdiction is not otherwise stripped.
  • Guzman-Munoz v. U.S. Att’y Gen.: Provides the decisive bridge: because motion-to-reopen review derives from final-order review, the INA’s jurisdiction-stripping provisions apply equally to denials of reopening.

The saving clause and what counts as a “colorable” legal/constitutional claim

  • Patel v. U.S. Att’y Gen. (2020) (en banc): Supplies the controlling standard for § 1252(a)(2)(D): a petitioner must assert a colorable claim—i.e., one with “some possible validity.” The panel uses this to screen out Fernandez’s theories as non-colorable.
  • Alvarez-Acosta v. U.S. Att’y Gen.: Stands for the proposition that routine challenges to how the BIA weighed equities or facts are not “questions of law” for purposes of § 1252(a)(2)(D). The panel characterizes Fernandez’s “you weighed my conviction too heavily” argument as precisely that.

The BIA’s discretion to deny reopening post-IIRIRA

  • Kucana v. Holder: Directly refutes Fernandez’s central “legal” premise by reaffirming that the BIA retains broad regulatory discretion “to grant or deny a motion to reopen.” The panel treats this as dispositive: Fernandez’s contrary position lacks “possible validity.”

Standards of review (reached only as background)

  • Butalova v. U.S. Att’y Gen. and Jiang v. U.S. Att’y Gen.: Provide the general abuse-of-discretion standard for denials of motions to reopen, though the panel ultimately does not reach merits review.

Authorities and cases raised by Fernandez (context for the reopening attempt)

  • Cintron v. United States Attorney General, Donowa v. United States Attorney General, Said v. United States Attorney General, Aspilaire v. Unted States Attorney General: Cited by Fernandez to argue his Florida conviction no longer fit the charged removability grounds under evolving categorical-approach case law. The Eleventh Circuit did not address these merits because it dismissed for lack of jurisdiction.
  • Matter of Lozada: Applied by the BIA (not the Eleventh Circuit) to reject equitable tolling based on ineffective assistance due to noncompliance with Lozada’s procedural predicates. The panel did not review that determination because it found no jurisdiction.

3.2. Legal Reasoning

  1. Triggering the jurisdictional bar: Because Fernandez was removable for controlled-substance and firearms offenses, the INA’s criminal-alien bar in 8 U.S.C. § 1252(a)(2)(C) presumptively removed the court’s power to review his case.
  2. Limited restoration under § 1252(a)(2)(D): The only way through the bar was the saving clause for “constitutional claims or questions of law.” Under Patel (2020) (en banc), the claim must be “colorable,” i.e., have “some possible validity.”
  3. Why Fernandez’s arguments were not colorable:
    • No-discretion theory: Foreclosed by Kucana v. Holder and echoed by Santos-Zacaria v. Garland; therefore not even “possibly valid.”
    • Misweighing equities / criminal history: Classified as a fact-bound, discretionary challenge— a “garden-variety abuse of discretion argument” barred from review under Alvarez-Acosta v. U.S. Att’y Gen. and not transformed into a legal question by labeling it “abuse of discretion.”
  4. Mandatory dismissal: Once the court concluded the petition did not raise a colorable legal/constitutional claim, it lacked jurisdiction and had to dismiss, enforcing the jurisdictional limit sua sponte as instructed by Santos-Zacaria.

3.3. Impact

Although unpublished, the decision illustrates a recurring and consequential jurisdictional gatekeeping rule in the Eleventh Circuit: in criminal-removability cases, petitioners cannot obtain review of reopening denials by repackaging discretionary or fact-weighing complaints as “legal questions.”

Practical effects include:

  • Petition framing becomes outcome-determinative: A petitioner must identify a genuine legal error (e.g., misinterpretation of a statute, application of an incorrect legal standard, or a due process violation with arguable merit), not merely disagreement with discretionary weighing.
  • Limited appellate oversight of equitable tolling / ineffective assistance in this posture: Where the court deems the asserted “legal” theories non-colorable, even potentially significant tolling disputes (including Lozada compliance and diligence) may never be reached on petition for review.
  • Reinforcement of BIA discretion to deny reopening: The panel’s reliance on Kucana and Santos-Zacaria underscores that reopening remains discretionary even after Congress codified the motion mechanism.

4. Complex Concepts Simplified

  • Motion to reopen: A request to restart immigration proceedings to consider new evidence or changed circumstances. By statute and regulation, it is generally limited to one motion filed within 90 days of the final removal order.
  • Time- and number-barred: If a motion is filed after 90 days or is a second (or later) motion, it is usually barred unless an exception applies.
  • Equitable tolling: A doctrine that can excuse late filing when (i) extraordinary circumstances prevented timely filing and (ii) the movant exercised reasonable diligence.
  • Ineffective assistance & Matter of Lozada: The BIA generally requires specific procedural steps to raise ineffective assistance— typically an affidavit describing the agreement and alleged failures, notice/opportunity for the prior representative to respond, and a bar/disciplinary complaint (or a reason for not filing one).
  • Criminal-alien jurisdiction bar (8 U.S.C. § 1252(a)(2)(C)): When removal is “by reason of” certain convictions (including controlled-substance and firearms offenses), Congress sharply limits judicial review.
  • Saving clause (8 U.S.C. § 1252(a)(2)(D)) and “colorable” claims: Courts can still review constitutional claims or legal questions—but only if the claim is plausibly valid, not foreclosed by controlling precedent or merely a quarrel with discretionary fact-weighing.

5. Conclusion

The Eleventh Circuit dismissed Fernandez’s petition because, as a criminally removable noncitizen, he could obtain review of a reopening denial only by presenting a colorable legal or constitutional claim under § 1252(a)(2)(D). His principal arguments—(i) that the BIA lacked discretion to deny reopening after IIRIRA and (ii) that the BIA improperly weighed his conviction— were either foreclosed by Kucana v. Holder or treated as non-reviewable discretionary fact disputes under Alvarez-Acosta v. U.S. Att’y Gen..

The decision’s broader significance is jurisdictional: it demonstrates how the criminal-alien bar and the “colorable claim” requirement can prevent appellate review of reopening denials unless the petition identifies a genuine, plausibly valid legal or constitutional error.