United States Court of Appeals
For the First Circuit
No. 04-1512
DOMINGOS JOAO LIBERAL DE ARAUJO,
Petitioner,
v.
JOHN ASHCROFT, Attorney General,
Respondent.
ON PETITION FOR REVIEW OF AN ORDER OF THE
OF THE BOARD OF IMMIGRATION APPEALS
Before
Selya, Circuit Judge,
Campbell, Senior Circuit Judge,
and Lipez, Circuit Judge.
William E. Graves, Jr., with whom Kerry E. Doyle and Graves &
Doyle, were on brief, for petitioner.
Greg D. Mack, Senior Litigation Counsel, Office of Immigration
Litigation, Civil Division, Department of Justice, with whom Peter
D. Keisler, Assistant Attorney General, and Donald E. Keener,
Deputy Director, were on brief, for respondent.
February 23, 2005
CAMPBELL, Senior Circuit Judge. Petitioner Domingos Joao
Liberal De Araujo, a native and citizen of Portugal, challenges the
finding of an Immigration Judge (IJ) that he is removable for
having committed an aggravated felony. He petitions this court to
review the Board of Immigration Appeals' (BIA) denial of his motion
to reopen sua sponte the removal proceedings. We reject his
petition for review for lack of jurisdiction.
I.
Petitioner entered the United States as a lawful
immigrant on September 4, 1973. On January 6, 1992, petitioner was
convicted in Massachusetts state court of assault and battery with
a dangerous weapon and was sentenced for the offense to two and
one-half years' imprisonment. On April 6, 2000, the former
Immigration and Naturalization Service (INS) issued to petitioner
a Notice to Appear, charging him with being removable under section
237(a)(2)(A)(iii) of the Immigration and Nationality Act (INA), 8
U.S.C. § 1227(a)(2)(A)(iii),1 for having committed an aggravated
felony, as defined in section 101(a)(43)(F) of the INA, 8 U.S.C. §
1
8 U.S.C. § 1227(a)(2)(A)(iii) provides that "[a]ny alien who
is convicted of an aggravated felony at any time after admission is
deportable."
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1101(a)(43)(F),2 to wit, a crime of violence, as defined in 18
U.S.C. § 16.
Petitioner failed to appear for the scheduled hearing
before the IJ on January 4, 2001, and, in absentia, the IJ ordered
him removed. On April 2, 2001, the Massachusetts state court
vacated the 1992 conviction for assault and battery with a
dangerous weapon, and petitioner then moved to reopen the removal
proceedings. On July 6, 2001, the IJ granted the motion to reopen.
On October 3, 2001, the former INS amended the original
charging document. The amendment alleged that petitioner was
removable on account of a November 7, 1995 Connecticut state
conviction of assault on a Department of Corrections employee and
also on account of a January 27, 2000 Massachusetts state
conviction for a controlled substance offense. Removeability for
the Connecticut assault was charged under section 237(a)(2)(A)(ii)
of the INA and for the Massachusetts controlled substance offense
under section 237(a)(2)(A)(iii) of the INA.3
2
8 U.S.C. § 1101(a)(43)(F) defines the term "aggravated
felony" as "a crime of violence (as defined in section 16 of Title
18, but not including a purely political offense) for which the
term of imprisonment [is] at least one year."
3
The amendment appears to misstate the particular provisions
pursuant to which petitioner was subject to removal. The INS
charged that petitioner was subject to removal under section
237(a)(2)(A)(ii) of the INA for having been convicted of an
aggravated felony. The appropriate statute for an aggravated
felony, however, is section 237(a)(2)(A)(iii) of the INA, 8 U.S.C.
§ 1227(a)(2)(A)(iii). The INS further charged that petitioner was
subject to removal under section 237(a)(2)(A)(iii) of the INA for
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At a hearing before the IJ, petitioner argued that he was
eligible for relief under former section 212(c) of the INA, 8
U.S.C. § 1182(c), because his 1995 conviction predated the repeal
of section 212(c), and, despite his controlled substance offense,
he would be eligible for cancellation of removal under section 240A
of the INA, 8 U.S.C. § 1229b.4 On October 31, 2001, at another
hearing before the IJ, the government argued that there was more
than one drug conviction and that under the rationale of Amaral v.
INS, 977 F.2d 33 (1st Cir. 1992), the subsequent conviction for
possession made petitioner an aggravated felon and, therefore,
ineligible for cancellation of removal.
having been convicted of a controlled substance offense. But the
appropriate statute for a controlled substance offense, language
from which the amendment includes, is section 237(a)(2)(B)(i) of
the INA, 8 U.S.C. § 1227(a)(2)(B)(i). While multiple controlled
substance offenses may amount to an aggravated felony, see Amaral
v. INS, 977 F.2d 33 (1st Cir. 1992), the amendment only charged a
single controlled substance conviction.
4
Former section 212(c) of the INA, 8 U.S.C. § 1182(c), granted
the Attorney General broad discretion to provide relief from
exclusion and deportation to lawful permanent residents convicted
of certain criminal offenses who had resided in the United States
for seven consecutive years. In 1996, Congress passed the Illegal
Immigration Reform and Immigrant Responsibility Act of 1996
(IIRIRA) which, inter alia, repealed section 212(c) and replaced it
with a new form of discretionary relief, "cancellation of removal,"
under section 240A of the INA, 8 U.S.C. § 1229b, which restricts
eligibility for relief to a narrower class of candidates than did
section 212(c). See Pub. L. No. 104-208, 110 Stat. 3009-546
(1996); INS v. St. Cyr, 533 U.S. 289, 297 (2001). That class, so
narrowed, does not include anyone "convicted of any aggravated
felony." Id. (quoting 8 U.S.C. § 1229b(a)(3)). In St. Cyr, the
Supreme Court held that the repeal of section 212(c) by the IIRIRA
did not apply retroactively to an alien who pled guilty to an
aggravated felony prior to the repeal. Id. at 315.
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On February 13, 2002, after a hearing, the IJ ordered
petitioner removed, finding (1) that the Connecticut assault
conviction, while a "close call", was a crime of violence under 18
U.S.C. § 16 and, therefore, was a removable offense under 8 U.S.C.
§§ 1101(a)(43)(F), 1227(a)(2)(A)(iii), and (2) that the existence
of the Massachusetts drug convictions ruled out application for
cancellation of removal. The IJ noted, however, that petitioner
had pending in Massachusetts state court a motion to vacate the
drug convictions. If that motion were to be granted, the IJ stated
that petitioner would become eligible to seek relief under former
section 212(c) of the INA, 8 U.S.C. § 1182(c).
Petitioner timely filed a notice of appeal to the BIA
from the order of removal, stating he would file a brief in support
of the appeal. On May 8, 2002, petitioner requested an extension
of time to file his appellate brief, and the BIA granted an
extension to June 21, 2002. The BIA did not, however, receive the
brief until June 24, 2002. Accordingly, it rejected the brief as
untimely. On July 8, 2002, the BIA summarily dismissed the appeal,
citing petitioner's failure to have filed a brief. On the same
day, petitioner moved the BIA to consider his tardily-filed brief,
blaming Federal Express for the brief's late delivery.5 That
motion was received by the BIA subsequent to issuance of its July
5
It appears that the wrong zip code had been provided, but
petitioner asserted that Federal Express had the remaining proper
information in order to deliver the brief.
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8, 2002 order dismissing the appeal, and it does not appear the BIA
took any action with regard to it. Petitioner did not at any time
thereafter petition this court for review of the BIA's dismissal of
the appeal and of the underlying removal order which thereupon
became effective, infra.
On July 26, 2002, petitioner moved the BIA to reconsider
its July 8, 2002 summary dismissal of his appeal. The BIA denied
that motion on December 23, 2002. On January 22, 2003, petitioner
moved the BIA to reopen. The BIA denied the motion, reasoning that
it was, "in essence," a second motion to reconsider that exceeded
the numerical limit of one motion to reconsider allowed under 8
C.F.R. § 1003.2(b)(2).
On November 19, 2003, upon petitioner's motion, the
Massachusetts court vacated his state convictions for controlled
substance offenses. This was done in response to petitioner's
affidavit that he entered guilty pleas in 1998 and 1999 "while [he]
was addicted to both heroin and cocaine," and that he "was so
addicted that when [he] entered [his] pleas of guilty, [] the only
thing [he] remember[ed] was that [he] was not going to jail."
On November 20, 2003, pointing to the vacation of his
Massachusetts controlled substance convictions, petitioner moved
the BIA to reopen the removal proceedings sua sponte. Petitioner
acknowledged that convictions vacated in order to avoid immigration
consequences remain countable under the INA. See Matter of
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Pickering, 23 I. & N. Dec. 621, 625 (BIA 2003) (affirming removal
on basis of quashed conviction where "quashing of the conviction
was not based on a defect in the conviction or in the proceedings
underlying the conviction, but instead appears to have been entered
solely for immigration purposes"). He stated that, while the
Massachusetts state case record was "unclear as to all of the
factual reasons for the Court's decision," his affidavit in support
of the motion to vacate the convictions "certainly suggests that
the pleas were entered without sufficient clarity of mind to render
them knowing and intelligent." Petitioner's motion further
asserted that his convictions prior to 1996 were waivable under
section 212(c) in accordance with St. Cyr. See 533 U.S. at 315.
Petitioner "acknowledge[d] that he ha[d] met and/or exceeded the
allowable number of Motions to Re-open and/or Reconsider," but he
requested the BIA to invoke its sua sponte authority to reopen the
case because of his "clear eligibility for a 212C Hearing" on the
question of whether the INS would waive his Connecticut conviction
for assault on the Department of Corrections employee.
On March 22, 2004, the BIA issued an order and
explanation denying petitioner's motion to reopen. The BIA
described petitioner's affidavit in support of his motion to vacate
his Massachusetts drug convictions as "extremely limited in
nature," and stated that the BIA would "need more information
before [it] [found] that [the] reason for the vacating of his
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convictions is sufficiently unrelated to the immigration
consequences arising from his convictions." The BIA went on to
note that while three of petitioner's four convictions, two for
assault (one with a dangerous weapon) and two for controlled
substances, had been vacated, none were vacated on the ground that
petitioner was not factually guilty. Moreover, at the time he
filed his affidavit in support of vacating the drug convictions he
was incarcerated for probation violations. The BIA concluded that
these factors "do not support the reopening of proceedings to apply
for discretionary relief which we do not believe [petitioner]
merits in the exercise of our discretion." From this denial by the
BIA of his motion to reopen, petitioner filed a timely petition for
review in this court.
II.
Petitioner advances two contentions in support of his
present petition for review from the BIA's denial of reopening.
First, he argues that his remaining November 7, 1995 conviction for
assault against a Connecticut Department of Corrections employee
did not constitute an aggravated felony. Second, he claims that
the BIA abused its discretion in failing to reopen his removal
proceedings. We lack jurisdiction over both claims.
A. The IJ's Order of Removal
Whether petitioner's 1995 conviction of an assault on a
Connecticut Department of Corrections employee did or did not
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amount to an aggravated felony is not an issue now open for review.
The IJ's February 12, 2002 ruling that the 1995 conviction was a
crime of violence under 18 U.S.C. § 16 and, therefore, an
aggravated felony which rendered petitioner subject to removal,
became final on July 8, 2002 when the BIA dismissed his appeal from
the IJ's February 12, 2002 order. See 8 C.F.R. § 241.1 ("An order
of removal made by the immigration judge at the conclusion of
proceedings under section 240 of the Act shall become final . . .
[u]pon dismissal of an appeal by the Board of Immigration Appeals
. . . ."). Petitions for review addressed to this court from BIA
orders must be filed "not later than 30 days after the date of the
final order of removal." 8 U.S.C. § 1252(b)(1). This time limit
is "a strict jurisdictional requirement." Ven v. Ashcroft, 386
F.3d 357, 359 (1st Cir. 2004) (quoting Zhang v. INS, 348 F.3d 289,
292 (1st Cir. 2003)). Here, petitioner never filed a timely
petition for review of the BIA's dismissal of his appeal and of the
underlying removal order based in part on the Connecticut assault
conviction.
We note that the running of the 30-day period for filing
a petition for review was not interrupted by petitioner's
subsequent motions to reopen or reconsider. See id. at 359-60 ("A
motion to reopen or reconsider does not toll the period for filing
a petition for judicial review of the underlying order of
deportation; in immigration cases the time to appeal denial orders
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continues to run despite the filing of motions to reopen or
reconsider . . . ."). Because petitioner never filed in this court
a petition for review within thirty days of the BIA's July 8, 2002
dismissal of the appeal from the IJ's order of removal, we now lack
jurisdiction to review the correctness of the IJ's underlying
finding that the 1995 Connecticut conviction of assault was for an
aggravated felony.
Petitioner, it is true, filed a timely petition for
review of the BIA's subsequent March 22, 2004 order denying his
later motion to reopen. But neither petitioner's motion to reopen
nor the BIA's March 22, 2004 order addressed the claim that the
1995 Connecticut conviction was not a crime of violence, hence not
an aggravated felony warranting removal. The strict jurisdictional
bar thus precludes our present consideration of petitioner's
contention that his 1995 conviction was not a crime of violence,
because that claim is nowhere included in the matters covered by
the present motion to reopen and the BIA's ruling thereon.
Petitioner never filed a timely petition for review raising that
claim. See 8 U.S.C. § 1252(b)(1); Ven, 386 F.3d at 359.
B. The BIA's Denial of the Motion to Reopen
Petitioner further contends that the BIA abused its
discretion in denying his November 20, 2003 motion to reopen his
removal proceedings sua sponte so that he could pursue a section
212(c) waiver now that his drug convictions have been vacated.
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Petitioner also argues that, by failing to reopen its proceedings,
the BIA deprived him of his constitutional right to due process
because he was not granted a fair opportunity to establish his
eligibility for relief from removal under section 212(c) of the INA
or to present to an IJ his case for such discretionary relief. See
Bernal-Vallejo v. INS, 195 F.3d 56, 64 (1st Cir. 1999) (holding
that due process argument based on ineffective assistance of
counsel "does not involve a matter that Congress committed to
agency discretion"); Ravindran v. INS, 976 F.2d 754, 762 (1st Cir.
1992) ("claims of a denial of due process may be exempt from [the
exhaustion requirement] where they are of the kind the BIA could
not adjudicate because of their predominantly constitutional
character").
Because we conclude above that we lack jurisdiction to
review petitioner's claim that his assault conviction was not for
a crime of violence, he remains removable on that ground, and we
lack jurisdiction to reach his other claims on direct review. INA
§ 242(a)(2)(C), 8 U.S.C. § 1252(a)(2)(C); Emile v. INS, 244 F.3d
183, 189 (1st Cir. 2001) ("Because Emile was convicted of an
aggravated felony, we have no authority to consider on direct
review any other claim once we conclude that he was legitimately so
classified."); Sousa v. INS, 226 F.3d 28, 34 (1st Cir. 2000)
("[H]aving determined that [Sousa] is removable as an aggravated
felon, our authority to act in this case with respect to the
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removal proceeding, including incidental rulings on discretionary
relief, is at an end.").
III.
The petition for review is dismissed for lack of
jurisdiction. So ordered.
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