United States Court of Appeals
For the First Circuit
No. 13-1131
JOSE MARIA GUERRERO,
Petitioner,
v.
ERIC H. HOLDER, JR., UNITED STATES ATTORNEY GENERAL,
Respondent.
PETITION FOR REVIEW OF AN ORDER
OF THE BOARD OF IMMIGRATION APPEALS
Before
Howard and Thompson, Circuit Judges,
Laplante, District Judge.*
Martin D. Harris on brief for petitioner.
Jennifer P. Levings, Senior Litigation Counsel, U.S.
Department of Justice, Civil Division, Office of Immigration
Litigation, Stuart F. Delery, Assistant Attorney General, Civil
Division, and Shelley R. Goad, Assistant Director, Office of
Immigration Litigation, on brief for respondent.
September 9, 2014
*
Of the District of New Hampshire, sitting by designation.
THOMPSON, Circuit Judge. The petitioner, Jose Maria
Guerrero, is a native and citizen of the Dominican Republic. He
seeks review of a final order of the Board of Immigration Appeals
("BIA"), dated December 27, 2012, vacating a prior decision to
reopen proceedings, and reinstating a prior order of deportation.
Because the BIA acted pursuant to its discretionary sua sponte
authority, we lack jurisdiction to review the petition.
I. BACKGROUND
We relate only the necessary factual and procedural
background to provide context for our decision.
A. Initial Deportation Proceedings
Guerrero was admitted to the United States on May 8,
1986, as a lawful permanent resident. On May 13, 1991, he was
convicted of criminal possession of a controlled substance in
violation of New York law. By virtue of this conviction, the
former Immigration and Naturalization Service ("INS")1 commenced
deportation proceedings against Guerrero in September 1995, filing
an Order to Show Cause ("OSC") with the immigration court. The INS
charged Guerrero with deportability under § 241(a)(2)(B)(i) of the
Immigration and Nationality Act ("INA"), 8 U.S.C. §
1
"The INS's enforcement functions have since been transferred
to the Department of Homeland Security." Chedid v. Holder, 573
F.3d 33, 34 n.1 (1st Cir. 2009). For purposes of this opinion, we
refer to the agency in place at the time the deportation
proceedings commenced: the INS.
-2-
1251(a)(2)(B)(i),2 as an alien convicted of violating a controlled
substance law, and submitted the conviction record as evidence.
Appearing with counsel before an immigration judge ("IJ") on April
16, 1996, Guerrero (through written pleadings) admitted the OSC's
factual allegations, and conceded his deportability as charged. As
relief from deportation, however, Guerrero sought a waiver of
inadmissibility under former INA § 212(c). See 8 U.S.C. § 1182(c),
repealed by Illegal Immigration Reform and Immigrant Responsibility
Act of 1996, Pub. L. No. 104–208, Title III, § 304(b), 110 Stat.
3009, 3009–597.3 At a later hearing on March 11, 1997, the IJ gave
Guerrero the opportunity to withdraw his pleadings admitting the
OSC's allegations and conceding deportability, and to contest
deportability. When he declined, the IJ ruled that Guerrero's
admissions and concession of deportability, along with the evidence
on the record, sustained the charge of deportability. The IJ then
pretermitted Guerrero's application for § 212(c) relief -- finding
the Antiterrorism and Effective Death Penalty Act of 1996, Pub. L.
No. 104-132, 110 Stat. 1214 ("AEDPA"), precluded § 212(c) relief
2
Now INA § 237(a)(2)(B)(i), 8 U.S.C. § 1227(a)(2)(B)(i).
3
Repealed in 1996, "[t]he former § 212(c) granted the
Attorney General broad discretion to terminate deportation
proceedings against an excludable alien. For decades, the class of
aliens eligible for such relief included aliens ordered . . .
deportable because of multiple convictions involving crimes of
moral turpitude." Nadal-Ginard v. Holder, 558 F.3d 61, 64 n.4 (1st
Cir. 2009).
-3-
"for all aliens deportable by reason of having committed any
[controlled substance] offenses" -- and ordered his deportation.
Guerrero appealed the IJ's decision to the BIA on April
8, 1997. On February 28, 2000, while the appeal was still pending
before the BIA, Guerrero pled nolo contendere in Rhode Island state
court to a charge of manufacturing/delivering a schedule I/II
controlled substance (cocaine), for which he received a deferred
sentence of five years.4 On July 31, 2000, the BIA (unaware of the
Rhode Island conviction) sustained Guerrero's appeal of the IJ's
March 11, 1997 decision because the AEDPA restrictions the IJ
relied on did not apply retroactively to proceedings commenced on
or before April 24, 1996, and Guerrero's proceedings had commenced
when he was served with the OSC on September 15, 1995. It remanded
the record back to the IJ to allow Guerrero the opportunity to
apply for § 212(c) relief.
On September 7, 2000, during a hearing on remand, INS
orally amended the OSC to reflect the Rhode Island conviction.
According to the INS, Guerrero was now also subject to deportation
under former INA § 241(a)(2)(A)(iii), 8 U.S.C.
§ 1251(a)(2)(A)(iii),5 as an alien who, at any time after
admission, is convicted of an aggravated felony. The IJ, finding
the Rhode Island conviction qualified as an aggravated felony,
4
The charged offense was committed on September 16, 1998.
5
Now INA § 237(a)(2)(A)(iii), 8 U.S.C. § 1227(a)(2)(A)(iii).
-4-
again pretermitted Guerrero's claim for § 212(c) relief on
September 10, 2001, and ordered him "removed and deported to the
Dominican Republic on the two charges lodged against him."6
Guerrero timely appealed to the BIA. And on January 23, 2002, the
BIA affirmed the IJ's September 10, 2001 decision, agreeing that
Guerrero's Rhode Island conviction precluded him from § 212(c)
relief. Guerrero was physically removed from the United States to
the Dominican Republic on September 18, 2002.
B. Reopening of Proceedings
On January 11, 2006, Guerrero entered the United States,
without inspection or admission. More than a year later, on June
22, 2007, he filed an untimely motion with the BIA to reopen his
proceedings.7 Guerrero contended that reopening was warranted
because his Rhode Island conviction had been vacated, and he
submitted the May 30, 2002 Rhode Island state court order vacating
said conviction. INS did not respond to this motion. The BIA
denied the motion to reopen on July 23, 2007, explaining Guerrero's
Rhode Island conviction remained final for immigration purposes
because it was "unable to ascertain whether the [Rhode Island
state] court's action was taken pursuant to a rehabilitative
6
The IJ had found that the added OSC charge for the Rhode
Island conviction was sustained by clear, convincing, and
unequivocal evidence.
7
As of right, an alien may file a single motion to reopen
within 90 days of the date of the BIA's final decision. See 8
U.S.C. §§ 1229a(c)(7)(A) & (c)(7)(C)(i); 8 C.F.R. § 1003.2(c)(2).
-5-
statute or to ameliorate the immigration consequences of
[Guerrero]'s conviction."
On March 17, 2008, Guerrero filed an untimely motion to
reconsider the BIA's July 23, 2007 decision.8 Reiterating that a
conviction no longer existed to support his deportability under the
then-existing § 241(a)(2)(A)(iii) as an alien convicted of an
aggravated felony, and that he was thus not barred from being
considered for a § 212(c) waiver of inadmissibility, Guerrero
submitted documentation evidencing that the criminal charge
underpinning the Rhode Island conviction had been dismissed "on the
grounds that the State cannot sustain its burden of proof in the
prosecution of this matter." INS did not respond to this motion
either.
Although Guerrero's motion was untimely,9 the BIA
nevertheless decided to sua sponte reopen the proceedings on June
4, 2008, remanded the record back to the IJ for further
consideration of Guerrero's deportability under
§ 241(a)(2)(A)(iii), eligibility for § 212(c) relief, and "any
other relief for which he may currently qualify." In doing so, the
BIA explained that the evidence submitted with the motion was
8
A motion to reconsider a BIA order must be filed within 30
days of a final order of removal. See 8 U.S.C. § 1229a(c)(6)(B);
8 C.F.R. § 1003.2(b)(2).
9
The BIA found the motion to be untimely whether it was
considered as a motion to reconsider (under 8 C.F.R. § 1003.2(b))
or as a motion to reopen (under 8 C.F.R. § 1003.2(c)(2)).
-6-
"undisputably probative (and potentially dispositive) of whether a
'conviction' . . . exists to support [Guerrero's] deportability as
an alien convicted of an aggravated felony, and by extension to
preclude him from being considered for 212(c) relief." It further
explained -- mistakenly -- that because Guerrero "has been a lawful
permanent resident of the United States for over 22 years," he
might "be able to demonstrate eligibility for section 212(c)."
At a hearing on remand on May 11, 2010 before a new IJ,
INS challenged Guerrero's eligibility for relief from removal,
arguing that he was no longer a lawful permanent resident under 8
C.F.R. § 1001.1(p)10, and that the BIA had improperly reopened
proceedings in light of his 2002 deportation. Following further
briefing on the issue, the IJ issued a decision on November 22,
2010, holding that the immigration court lacked jurisdiction to
adjudicate Guerrero's § 212(c) waiver application or any other
application for relief due to the departure bar of 8 C.F.R.
§ 1003.23(b)(1), which limited its jurisdiction to adjudicate
10
"The term lawfully admitted for permanent residence means
the status of having been lawfully accorded the privilege of
residing permanently in the United States as an immigrant in
accordance with the immigration laws, such status not having
changed. Such status terminates upon entry of a final
administrative order of exclusion, deportation, removal, or
rescission." 8 C.F.R. § 1001.1(p).
-7-
motions filed by aliens who had left the United States.11 The IJ
ordered Guerrero's deportation for the third time.
C. The BIA's Sua Sponte Reconsideration
Guerrero appealed this decision to the BIA on December
20, 2010. Three days later, on December 23, 2010, INS filed a
motion to vacate the June 4, 2008 sua sponte reopening order. On
December 27, 2012, the BIA issued its decision -- the subject of
this appeal -- determining that its June 4, 2008 order sua sponte
reopening proceedings was issued in error. Citing "legal and
factual errors in its prior decision to sua sponte reopen
proceedings," the BIA reconsidered the June 4, 2008 decision, and
ultimately denied Guerrero's March 17, 2008 motion to reconsider.
Accordingly, the BIA granted INS's motion to vacate; vacated its
own June 4, 2008 sua sponte order, as well as the IJ's November 22,
2010 decision ordering Guerrero's deportation; denied Guerrero's
March 17, 2008 motion to reconsider; and dismissed Guerrero's
appeal from the IJ's November 22, 2010 decision as moot. The BIA
then declared that its January 23, 2002 deportation order remained
in effect.
11
"A motion to reopen or to reconsider shall not be made by
or on behalf of a person who is the subject of removal,
deportation, or exclusion proceedings subsequent to his or her
departure from the United States." 8 C.F.R. § 1003.23(b)(1).
-8-
II. ANALYSIS
Advancing multiple arguments, Guerrero now petitions for
review of the BIA's November 27, 2012 order (the most recent one)
effectively denying sua sponte reopening proceedings, and asks us
to reverse it. But we cannot. We lack jurisdiction to do so.
Although we typically have jurisdiction to review the
denial of a motion to reopen by the BIA, "there are exceptions to
that general rule." Peralta v. Holder, 567 F.3d 31, 32 (1st Cir.
2009). One of these exceptions is the review of a "decision not to
reopen removal proceedings sua sponte," id., because "[t]here are
no guidelines or standards which dictate how and when the BIA
should invoke its sua sponte power," Córdoba-Quiroz v. Gonzáles,
233 F. App'x 5, 7 (1st Cir. 2007)(alteration in original)(quoting
Luis v. I.N.S., 196 F.3d 36, 41 (1st Cir. 1999))(internal quotation
marks omitted).12 "The BIA's regulations provide that it 'may at
any time reopen or reconsider on its own motion any case in which
it has rendered a decision.'" Cerrato-Marquez v. Holder, 563 F.
App'x 1, 2 (1st Cir. 2014)(quoting 8 C.F.R. § 1003.2(a))(Souter,
J.). And this decision of whether to invoke its sua sponte
authority is committed "to the unbridled discretion of the [BIA]."
12
As noted by the government in its brief, there is also an
exception, contained in 8 U.S.C. § 1252(a)(2)(D), which allows this
court, in certain instances where judicial review might be limited
or eliminated, to review constitutional claims or questions of law.
The government argues that this section does not apply to the
matter at hand but this is not something we need to delve into as
Guerrero, himself, makes no argument relative to this issue.
-9-
Id. (alteration in original)(quoting Matos-Santana v. Holder, 660
F.3d 91, 94 (1st Cir. 2011))(internal quotation marks omitted); see
8 C.F.R. § 1003.2(a) ("The decision to grant or deny a motion to
reopen or reconsider is within the discretion of the Board . . . .
[which] has discretion to deny a motion to reopen even if the party
moving has made out a prima facie case for relief.").
It is undisputed that the BIA's June 4, 2008 order
reopening Guerrero's proceedings was issued pursuant to its sua
sponte authority. In deciding to invoke this discretionary power,
the BIA admittedly relied on the erroneous premise that Guerrero
had continued to reside in the United States for over twenty-two
years as a lawful permanent resident, unaware of Guerrero's
deportation from the country in the interim. After learning of
"this previously undisclosed fact,"13 the BIA reconsidered its
decision on December 27, 2012, and concluded that sua sponte
reopening was not warranted. It was fully authorized to do so.
See Cerrato-Marquez, 563 F. App'x at 2. The BIA had unfettered
discretion to deny reopening the proceedings in March 2008 (when
Guerrero filed his untimely motion to reconsider), and it retained
unfettered discretion to reconsider and deny reopening in December
2012. See Matos-Santana, 660 F.3d at 94 ("[T]he BIA has the
13
Guerrero did not disclose to the BIA in his motion to reopen
(June 22, 2007) or his motion to reconsider (March 14, 2008) that
he had been deported and had subsequently re-entered the United
States without inspection.
-10-
authority at any time, on its own initiative, to reopen a
previously decided case."). Consequently, just as we would have
lacked jurisdiction to review the BIA's refusal to exercise its sua
sponte authority to reopen Guerrero's case in June 2008, we lack
jurisdiction to review it now. Cf. Charuc v. Holder, 737 F.3d 113,
115 (1st Cir. 2013) ("[W]e think it virtually unarguable that when
an appellate court lacks jurisdiction to review an agency's denial
of particular relief, it must also lack jurisdiction to review the
denial of a motion to reconsider the failure to grant that
relief.").
We need go no further.
III. CONCLUSION
For the aforementioned reasons, we dismiss the petition
for judicial review.
-11-