10-2139-ag
Tavarez v. Holder
BIA
A034 133 035
UNITED STATES COURT OF APPEALS
FOR THE SECOND CIRCUIT
SUMMARY ORDER
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At a stated term of the United States Court of Appeals
for the Second Circuit, held at the Daniel Patrick Moynihan
United States Courthouse, 500 Pearl Street, in the City of
New York, on the 17th day of May, two thousand eleven.
PRESENT:
ROBERT A. KATZMANN,
RICHARD C. WESLEY,
DENNY CHIN,
Circuit Judges.
_____________________________________
RAFAEL ANTONIO TAVAREZ,
Petitioner,
v. 10-2139-ag
NAC
ERIC H. HOLDER, JR., UNITED STATES
ATTORNEY GENERAL,
Respondent.
_____________________________________
FOR PETITIONER: Michael Kohler, Syosset, New York.
FOR RESPONDENT: Tony West, Assistant Attorney
General; Emily Anne Radford,
Assistant Director; Aric A.
Anderson, Trial Attorney, Office of
Immigration Litigation, Civil
Division, United States Department
of Justice, Washington, D.C.
UPON DUE CONSIDERATION of this petition for review of a
decision of the Board of Immigration Appeals (“BIA”), it is
hereby ORDERED, ADJUDGED, AND DECREED, that the petition for
review is DISMISSED.
Rafael Antonio Tavarez, a native and citizen of the
Dominican Republic, seeks review of a May 4, 2010 order of
the BIA denying his motion to reopen. In re Rafael Antonio
Tavarez, No. A034 133 035 (B.I.A. May 4, 2010). We assume
the parties’ familiarity with the underlying facts and
procedural history of this case.
Generally, we lack jurisdiction to review the “entirely
discretionary” decision of the BIA whether to reopen removal
proceedings sua sponte. Ali v. Gonzales, 448 F.3d 515, 518
(2d Cir. 2006) (per curiam). However, we retain
jurisdiction to review such decisions when they are premised
on a misperception of the law. See Mahmood v. Holder, 570
F.3d 466, 469 (2d Cir. 2009) (holding that “where the Agency
may have declined to exercise its sua sponte authority
because it misperceived the legal background and thought,
incorrectly, that a reopening would necessarily fail, remand
to the Agency for reconsideration in view of the correct law
is appropriate”).
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Tavarez argues that in Kucana v. Holder, 130 S. Ct. 827
(2010), the Supreme Court granted this Court jurisdiction to
review the agency’s failure to reopen sua sponte. This
argument is unavailing as the Supreme Court “express[ed] no
opinion on whether federal courts may review the Board’s
decision not to reopen removal proceedings sua sponte.” Id.
at 839 n.18. After Kucana, this Court has reiterated that
it has limited jurisdiction to review the BIA’s decisions
not to reopen proceedings sua sponte. See Luna v. Holder,
--- F.3d ---, 2011 WL 722607, at *10 (2d Cir. Mar. 3, 2011);
Duarte-Ceri v. Holder, 630 F.3d 83, 87 (2d Cir. 2010)
(refusal to reopen sua sponte is “a discretionary decision
that is normally not reviewable by the Courts of Appeals”).
Accordingly, under the circumstances of this case, we lack
jurisdiction to review the BIA’s discretionary refusal to
reopen Tavarez’s proceedings sua sponte. See Mahmood, 570
F.3d at 469; Ali, 448 F.3d at 518.
Even if the Court had jurisdiction, Tavarez cannot
demonstrate that the BIA abused its discretion in denying
his untimely motion to reopen. See Kaur v. BIA, 413 F.3d
232, 233 (2d Cir. 2005) (per curiam). Tavarez does not
challenge the BIA’s findings that he (1) missed numerous
deadlines to apply for relief under § 212(c) of the
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Immigration and Nationality Act and, in particular, failed
to explain in his September 16, 2009 motion to reopen why he
missed the deadline for filing a special motion to apply for
§ 212(c) relief, see 8 C.F.R. § 1003.44(h) (reopening period
ended on April 26, 2005); (2) did not raise a colorable
ineffective assistance of counsel claim; and (3) did not
provide the appropriate application for relief and all
supporting documentation. Those arguments therefore may be
deemed waived. See Yueqing Zhang v. Gonzales, 426 F.3d 540,
541 n.1, 545 n.7 (2d Cir. 2005).
Tavarez argues that the BIA erred by ignoring his
argument that he should no longer be considered an aggravated
felon following the Supreme Court’s decision in Lopez v.
Gonzales, 549 U.S. 47 (2006). Tavarez has provided no
explanation for the nearly three-year delay in filing his
motion to reopen after the Lopez decision issued.
Nevertheless, assuming, arguendo, that Tavarez is no longer
an aggravated felon, he has not established that reopening
was warranted. Notwithstanding the drug conviction
underlying his aggravated felon status, Tavarez remains
removable on the basis of a firearms conviction, which would
require an Immigration and Nationality Act § 212(c) waiver
and adjustment of status. See Matter of Azurin, 23 I. & N.
4
Dec. 695, 697 (BIA 2005). In his motion to reopen Tavarez
did not establish his prima facie eligibility for adjustment
of status. See 8 C.F.R. § 1003.2(c) (providing that a motion
to reopen must be accompanied by the appropriate application
for relief and all supporting documentation). Tavarez’s
argument that reopening is required because his status as an
aggravated felon may carry future collateral consequences is
unavailing because it is speculative, and he may avoid the
longer bar to re-entry that results from his aggravated felon
status by applying for a waiver from the Attorney General.
See 8 U.S.C. § 1182(a)(9)(A)(iii).
For the foregoing reasons, the petition for review is
DISMISSED.
FOR THE COURT:
Catherine O’Hagan Wolfe, Clerk
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