NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
____________
No. 08-3496
_____________
JORGE GUZMAN-CANO,
a/k/a Carlos Rodriguez,
Petitioner
v.
ATTORNEY GENERAL OF THE UNITED STATES,
Respondent
Petition for Review of an Order of the
United States Department of Justice
Board of Immigration Appeals
(BIA No. A036-695-580)
Immigration Judge: Honorable Donald Ferlise
Submitted Under Third Circuit LAR 34.1(a)
March 24, 2010
Before: RENDELL, AMBRO and, FUENTES, Circuit Judges.
(Filed: April 12, 2010)
OPINION OF THE COURT
RENDELL, Circuit Judge.
Jorge Guzman-Cano petitions for review of the Board of Immigration Appeals
(“BIA”) decision denying his motion to reconsider the denial of his motion to reopen
deportation proceedings. We will dismiss the petition for review for lack of appellate
jurisdiction.
I.
Guzman-Cano is a 54 year-old native and citizen of Colombia who was admitted
to the United States as a lawful permanent resident in June 1980. Two years later, in
November 1982, Guzman-Cano pled guilty to, and was convicted of, possession and
delivery of a controlled substance (cocaine) in violation of Pennsylvania law. Four
months later, in March 1983, Guzman-Cano again pled guilty to, and was convicted of,
possession of a controlled substance (cocaine), this time in violation of New Jersey law.
Guzman-Cano was convicted a final time in 1988, although detailed information
pertaining to this conviction is absent from the record of proceedings. For this final
conviction Guzman-Cano was imprisoned from 1988 to 1994.
Deportation proceedings were initiated against Guzman-Cano in 1990 that, after an
adverse immigration judge (“IJ”) ruling and remand by the BIA to the IJ in 2000,
ultimately culminated in the BIA’s 2003 dismissal of his appeal from a second adverse IJ
ruling. These rulings considered whether his convictions rendered him ineligible for
relief from removal under former Immigration and Nationality Act § 212(c), 8 U.S.C. §
1182(c). In dismissing his appeal in 2003, the BIA concluded both that Guzman-Cano’s
drug trafficking convictions constituted aggravated felonies, and that he was thus
ineligible for relief under section 212(c) because since 1990 “a lawful permanent resident
2
who has served at least 5 years in prison for an aggravated felony or felonies has been
ineligible for a waiver under section 212(c).” App. 320-21. Guzman did not petition for
review of this decision. Nor did he leave the country as ordered.
On April 25, 2005, Guzman-Cano filed with the BIA a special motion to reopen
pursuant to 8 C.F.R. § 1003.44. The BIA denied the motion to reopen on August 31,
2005, because the regulation he relied upon allowed reopening only in cases in which the
alien either had agreed to plead guilty pursuant to a plea agreement or was offered and
rejected a plea agreement before April 1, 1997, and Guzman-Cano did not offer evidence
that he met either of these conditions. App. 189-90. Guzman-Cano did not petition this
Court for review of the decision. Nor did he leave the country as ordered.
Three years later, on June 18, 2008, Guzman-Cano filed a second motion to reopen
with the BIA. This motion to reopen was time- and number-barred, so Guzman-Cano
asked the BIA to exercise its sua sponte powers to reopen his case pursuant to 8 C.F.R.
§ 1003.2(a). App. 107. On July 11, 2008, the BIA denied Guzman-Cano’s motion to
reopen as time- and number-barred and declined to exercise its sua sponte authority to
reopen.1 Guzman-Cano did not file a petition for review of that decision.
Instead, on July 16, 2008, Guzman-Cano filed a motion to reconsider. On August
1
The BIA also noted that Guzman-Cano was ineligible for a section 212(c) waiver of
inadmissibility prior to 1996, and thus unaffected by this Court’s decision in Atkinson v.
Atty. Gen., 479 F.3d 222 (3d Cir. 2007), which held that the 1996 amendments abolishing
section 212(c) relief did not apply to prior convictions. App. 106.
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5, 2008, the BIA denied the motion to reconsider, finding that Guzman-Cano “has not
demonstrated any error in our previous decision.” App. 2. Guzman-Cano petitions this
Court for review from this last BIA order.
II.
Guzman-Cano acknowledges that in this appeal he seeks review only of the August
5, 2008 order of the BIA denying his motion to reopen. (Appellant’s Br. 1.) We lack
jurisdiction to review the BIA’s unwillingness to reconsider its denial of sua sponte
reopening essentially because we lack jurisdiction to review the BIA’s July 11, 2008
decision not to sua sponte reopen. We have made it clear that we lack jurisdiction to
review a decision by the BIA declining to exercise its sua sponte authority. See Calle-
Vujiles v. Ashcroft, 320 F.3d 472, 475 (3d Cir. 2003) (“Because the BIA retains
unfettered discretion to decline to sua sponte reopen or reconsider a deportation
proceeding, this court is without jurisdiction to review a decision declining to exercise
such discretion to reopen or reconsider the case.”).2
Guzman-Cano has not filed a reply brief or otherwise urged that any exception to
2
Nine Courts of Appeals have agreed, holding that the BIA’s decision whether to
reopen proceedings on its own motion is committed to agency discretion by law. See Luis
v. INS, 196 F.3d 36, 40 (1st Cir. 1999); Ali v. Gonzales, 448 F.3d 515, 518 (2d Cir. 2006);
Enriquez-Alvarado v. Ashcroft, 371 F.3d 246, 248-50 (5th Cir. 2004); Harchenko v. INS,
379 F.3d 405, 410-11 (6th Cir. 2004); Pilch v. Ashcroft, 353 F.3d 585, 586 (7th Cir.
2003); Tamenut v. Mukasey, 521 F.3d 1000, 1004 (8th Cir. 2008) (en banc); Ekimian v.
INS, 303 F.3d 1153, 1159 (9th Cir. 2002); Belay-Gebru v. INS, 327 F.3d 998, 1000-01
(10th Cir. 2003); Anin v. Reno, 188 F.3d 1273, 1279 (11th Cir. 1999).
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this rule should apply.3
III.
Accordingly, the petition for review will be dismissed for lack of appellate
jurisdiction.
3
In Cruz, we suggested that there may be an exception to this rule, namely, if “the BIA
has restricted the exercise of its discretion by establishing a ‘general policy’ of reopening
sua sponte” in certain particular circumstances. Cruz v. Att’y Gen. 452 F.3d 240, 249 (3d
Cir. 2006). We noted that “[w]here there is a consistent pattern of administrative
decisions on a given issue, we would expect the BIA to conform to that pattern or explain
its departure from it.” Id. at 250.
5