Reyes v. Sessions

United States Court of Appeals
For the First Circuit

No. 17-1892

JULIO H. REYES,

Petitioner,

v.

JEFFERSON B. SESSIONS, III,
ATTORNEY GENERAL,

Respondent.

PETITION FOR REVIEW OF AN ORDER OF
THE BOARD OF IMMIGRATION APPEALS

Before

Lynch, Stahl, and Kayatta,
Circuit Judges.

Jonathan Ng, with whom Robert Ley and Law Office of Johanna
Herrero were on brief, for petitioner.
Yedidya Cohen, Trial Attorney, Office of Immigration
Litigation, Civil Division, U.S. Department of Justice, with whom
Chad A. Readler, Acting Assistant Attorney General, and Anthony C.
Payne, Assistant Director, Office of Immigration Litigation, were
on brief, for respondent.

March 29, 2018
 LYNCH, Circuit Judge. Julio H. Reyes challenges the

Board of Immigration Appeals' ("BIA") denial of his motion to

reopen for being untimely and its decision not to reopen sua

sponte. The BIA found that Reyes had submitted his motion to

reopen long after the ninety-day limit and did not show that he

fit within an exception to that limit, and did not even attempt to

argue to the BIA that he did. The BIA did not abuse its discretion,

so we deny that portion of his petition. The BIA also determined

that sua sponte reopening was unwarranted. We dismiss Reyes's

challenge of that decision for lack of jurisdiction.

I.

Reyes, a native and citizen of El Salvador, entered the

United States in 1987 without being admitted or paroled after

inspection by an immigration officer. Between 1991 and 2011, Reyes

was arraigned on twenty-six different criminal charges. These

charges included: assault and battery with a dangerous weapon in

1991; disorderly conduct in 1992; assault and battery in 1993;

receiving stolen property in 1993; violation of a restraining order

and threatening to commit a crime in 1996, for an altercation

involving a woman he said was his girlfriend at the time; buying

or receiving a stolen motor vehicle in 1997; assault and battery

on a police officer and resisting arrest in 1998; operating a

vehicle under the influence of alcohol and leaving the scene of an

accident in 2001; assault and battery with a dangerous weapon and

- 2 -
threatening to commit a crime in 2003, for allegedly beating his

girlfriend; intimidation of a witness in 2003, for allegedly

preventing his girlfriend from testifying regarding the 2003

assault and battery charge; assault and battery in 2008, for

allegedly hitting a woman he was dating and who is the mother of

his children; possessing an open container of alcohol in a motor

vehicle in 2009; and assault and battery in 2011, again for

allegedly beating the mother of his children.

At least two of the charges against Reyes led to

convictions. In 1993, Reyes was convicted of assault and battery,

in violation of Mass. Gen. Laws ch. 265 § 13A. In 1997, he pleaded

guilty to buying or receiving a stolen motor vehicle, in violation

of Mass. Gen. Laws ch. 266 § 28.

In 2007, the Department of Homeland Security initiated

removal proceedings against Reyes, charging that Reyes was present

in the United States without being admitted or inspected. Reyes

conceded that he was removable and applied for special rule

cancellation of removal under the Nicaraguan Adjustment and

Central American Relief Act of 1997 ("NACARA"), which provides the

Attorney General discretion to cancel removal if certain

conditions are met.1 8 C.F.R. § 1240.66(b). At a hearing before

1 To be eligible for this relief, a person must, inter
alia, be inadmissible or deportable, have been continuously
present in the United States for a certain period of time, be of
good moral character during his continuous presence in the United

- 3 -
the Immigration Judge ("IJ"), Reyes testified that returning to El

Salvador would create a hardship because he had negative memories

from El Salvador's civil war, he would not be able to find

employment there, he financially supported his three United States

citizen children, and he provided care to his mother, who lives in

the United States.

The IJ, for multiple separate reasons, denied Reyes's

application and ordered him removed. First, the IJ determined

that Reyes's 1997 conviction for receiving a stolen vehicle was a

crime involving moral turpitude and, as a result, applied the

heightened standard that Reyes must show his removal would result

in "exceptional and extremely unusual" hardship. The IJ found

that Reyes did not satisfy that standard because the hardship Reyes

had identified was not "substantially different from, or beyond,

that which would normally be expected from the deportation of an

alien with close family members here." Second, the IJ determined

that Reyes had failed to show that he had been of good moral

character during his time in the United States. Third, and

States, and demonstrate a certain level of hardship. 8 C.F.R.
§ 1240.66. A person who has not committed a crime involving moral
turpitude must show that he has been continuously present in the
United States for seven years and that returning to his home
country would cause "extreme hardship." Id. § 1240.66(b). A
person who has committed such a crime must show he has been
continuously present in the United States for ten years following
that crime and that returning to his home country would result in
"exceptional and extremely unusual hardship." Id. § 1240.66(c).

- 4 -
independently, the IJ denied Reyes's motion as a matter of

discretion because Reyes had been arraigned on twenty-six criminal

charges during his time in the United States. The IJ stated that

"[s]uch a criminal record is sufficient to . . . determine that

[Reyes] would not warrant a favorable exercise of discretion."

The BIA affirmed on October 9, 2012. It agreed with the

IJ that Reyes had failed to show that his removal would result in

exceptional and extremely unusual hardship. It separately

concluded that the IJ was correct to deny cancellation of removal

as a matter of discretion "[f]or the reasons thoroughly discussed

by the [IJ]." The BIA did not reach the good moral character

issue. Reyes did not move to reopen within the ninety-day period.

Despite the 2012 final order of removal, Reyes remained

in the United States. On February 23, 2017, Reyes filed a motion

to reopen and an accompanying emergency stay of removal. His

motion to reopen alleged that, on January 9, 2017, Reyes's 1993

conviction for assault and battery was vacated on the grounds that

his counsel at the time had failed to warn him of the immigration

consequences of pleading guilty and that he had not been provided

an interpreter. Based on that vacatur, Reyes argued that he could

now meet the requirements for special rule cancellation of removal

under NACARA. At no point did Reyes, who was represented by

counsel, attempt to justify the years-long delay between the final

order of removal and his effort to vacate his prior conviction.

- 5 -
 DHS responded on March 7, 2017, asserting that the

vacatur did not change any facet of the IJ's and BIA's analyses.

In its discussion of the NACARA hardship standard, DHS pointed out

that the application of the heightened standard under NACARA was

based on Reyes's 1997 conviction for buying or receiving a stolen

motor vehicle, not the assault and battery conviction that had

been vacated.

Reyes went back to the state court and argued that his

conviction for buying or receiving a stolen motor vehicle should

be vacated, again due to Reyes's allegation that his counsel had

not warned him of the immigration consequences of a guilty plea.

The state court vacated the conviction on July 27, 2017. Reyes

filed his response to DHS's opposition to his motion to reopen the

next day, notifying the BIA of the July 27, 2017 vacatur as part

of that filing.

The BIA denied Reyes's motion on August 11, 2017. First,

the BIA determined that Reyes's motion to reopen was untimely.

Motions to reopen must be filed within ninety days of a final order

of removal, and Reyes had waited more than four years. The BIA

found that Reyes "ha[d] not shown that the late filing of his

motion to reopen is excused under any exception" and denied the

motion as a result. Second, the BIA declined to reopen sua sponte

on the ground that Reyes had failed to show that the vacaturs of

the two criminal convictions would have led to a different outcome.

- 6 -
The BIA explained that, even if the vacaturs might help Reyes on

the good moral character and hardship requirements, they would not

impact the IJ's and BIA's decisions to deny cancellation of removal

as a matter of discretion. The BIA explained that the IJ had found

that Reyes's history of arrests was sufficient to deny cancellation

of removal as a matter of discretion, and the BIA's 2012 decision

had adopted that reasoning. Because the two vacaturs did not

affect that independent ground for denying cancellation of

removal, sua sponte reopening was unwarranted. For the same

reason, the BIA determined that Reyes's motion to reopen would

have failed even if it had been timely.

II.

Reyes's petition for review argues that the BIA erred by

denying his motion to reopen. Where we have jurisdiction, we

review the BIA's denial of a motion to reopen for abuse of

discretion. Sánchez-Romero v. Sessions, 865 F.3d 43, 45 (1st Cir.

2017). A motion to reopen generally must be filed within ninety

days of a final order of removal. 8 U.S.C. § 1229a(c)(7)(C)(i).

Here, the BIA entered a final order of removal on October 9, 2012,

and Reyes did not file his motion to reopen until February 23,

2017. His filings did not provide the BIA any reason why his

submission should be considered timely. Consequently, the BIA

held that Reyes had failed to justify the delay and dismissed his

- 7 -
motion as untimely. That ruling can hardly be an abuse of

discretion.2

III.

Reyes also challenges the BIA's decision not to reopen

sua sponte. This circuit has long held that "sua sponte authority

is committed to the unbridled discretion of the BIA, and the courts

lack jurisdiction to review that judgment." Charuc v. Holder, 737

F.3d 113, 115 (1st Cir. 2013) (quoting Matos-Santana v. Holder,

660 F.3d 91, 94 (1st Cir. 2011)). Reyes argues that we have

jurisdiction under 8 U.S.C. § 1252(a)(2)(D) because his petition

raises constitutional issues and questions of law.

This court has not determined whether 8 U.S.C.

§ 1252(a)(2)(D) provides courts of appeals with jurisdiction to

review, under certain circumstances, the BIA's sua sponte decision

not to reopen. See Matias v. Sessions, 871 F.3d 65, 69 (1st Cir.

2017). We need not decide that issue here. Section 1252(a)(2)(D)

only arguably applies to a petitioner's constitutional or legal

challenges if they are colorable, see Ayeni v. Holder, 617 F.3d

2 Reyes argues before this court that his motion to reopen
should be considered timely because the two vacaturs amount to a
"changed and exceptional circumstance," and the motion to reopen
was filed within ninety days of the vacaturs. Reyes did not make
this argument before the BIA, so it is unexhausted and waived.
See Molina De Massenet v. Gonzales, 485 F.3d 661, 664 (1st Cir.
2007). Even if the argument were before us, we note that he does
not explain why he waited years to attempt to vacate his
convictions, including years after the immigration consequences
had been made clear by the BIA's final order of removal in 2012.

- 8 -
67, 71 (1st Cir. 2010) (citing Elysee v. Gonzales, 437 F.3d 221,

223 (1st Cir. 2006)), and Reyes's are not.

Reyes argues that the BIA's decision not to reopen sua

sponte denied Reyes due process and so raises a constitutional

claim. That is plainly not so, for a number of reasons, and we

give only one. A due process claim can only succeed if Reyes has

a "cognizable liberty interest," Matias, 871 F.3d at 72 (quoting

Mejia-Orellana v. Gonzales, 502 F.3d 13, 17 (1st Cir. 2007)), and

he does not. The BIA's exercise of its "purely discretionary" sua

sponte authority "does not create a cognizable liberty interest."3

Id.

Reyes argues that he asserts a colorable question of law

because he alleges that the BIA "impermissibly departed from a

consistent pattern of administrative decisions rendered in similar

cases." The BIA's decision here was completely consistent with

its precedent. Reyes cites only cases in which the BIA chose to

exercise its discretion to reopen sua sponte where the underlying

charge of removal was based solely on a criminal conviction that

had been vacated. See, e.g., In Re: Urquilla-Morales, 2005 WL

3709278, at *1 (B.I.A. 2005). Here, as the BIA explained, the IJ

made an independent discretionary decision, which the BIA

3 Reyes argues that the application of the exceptional and
extremely unusual hardship standard amounted to a violation of his
right to due process. That argument is not colorable for the same
reason that his other due process argument is not colorable.

- 9 -
affirmed, not to grant special rule cancellation of removal, and

that decision was based on Reyes's twenty-six criminal charges,

not his two convictions.

IV.

Reyes's petition for review is denied as to his challenge

to the BIA's determination that his motion to reopen was untimely

and dismissed for lack of jurisdiction as to his challenge to the

BIA’s decision to not exercise its sua sponte authority to reopen.

- 10 -