United States Court of Appeals
For the First Circuit
No. 10-2373
JUNIOR OMAR MATOS-SANTANA,
Petitioner,
v.
ERIC H. HOLDER, JR., ATTORNEY GENERAL,
Respondent.
PETITION FOR REVIEW OF AN ORDER OF THE
BOARD OF IMMIGRATION APPEALS
Before
Howard, Ripple* and Selya,
Circuit Judges.
Alexander Arandia and Arandia & Arandia on brief for
petitioner.
Tony West, Assistant Attorney General, Civil Division, Linda
S. Wernery, Assistant Director, Office of Immigration Litigation,
and Sarah Maloney, Attorney, Office of Immigration Litigation, on
brief for respondent.
November 2, 2011
*
Of the Seventh Circuit, sitting by designation.
SELYA, Circuit Judge. The petitioner, Junior Omar Matos-
Santana, is a native and citizen of the Dominican Republic. He
seeks judicial review of a final order of the Board of Immigration
Appeals (BIA) denying his motion to reopen long-closed removal
proceedings. The BIA rejected the motion as untimely and declined
to exercise its discretionary authority to relieve the petitioner
from the time bar. We deny the petition for review.
The relevant facts and travel of this case are
susceptible to succinct summarization. The petitioner entered the
United States in 1982 and thereafter became a lawful permanent
resident. About a decade after his arrival, local authorities
charged him with robbery in the second degree. See N.Y. Penal Law
§ 160.10. After pleading guilty to the charge, he served eleven
months in prison.
A few years later, local authorities charged the
petitioner with another crime — this time, auto stripping in the
third degree. See id. § 165.09. He once again entered a guilty
plea, and the court sentenced him to a three-year probationary
term. Neither this conviction nor the earlier robbery conviction
led to any immediate difficulty with immigration officials.
In 2003, the petitioner opted to travel abroad. Upon his
return, the Department of Homeland Security (DHS) denied him
readmission on account of, among other things, his conviction for
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robbery, which the DHS classified as a crime involving moral
turpitude. See 8 U.S.C. § 1182(a)(2)(A)(i)(I).
The petitioner was paroled into the United States, and
removal proceedings ensued. During the removal proceedings, the
petitioner conceded that second-degree robbery was a crime of moral
turpitude, but he contended that his conviction for that crime
should be waived pursuant to former 8 U.S.C. § 1182(c) (repealed
1996).1 The government demurred, arguing that the petitioner's
subsequent conviction for yet another crime of moral turpitude —
his auto-stripping conviction — rendered him ineligible for a
section 1182(c) waiver. The petitioner responded that auto
stripping was not a crime of moral turpitude or, if it so
qualified, fell within the statute's "petty offense" exception.
See id. § 1182(a)(2)(A)(ii)(II). He further contended that, in any
event, he was eligible for cancellation of removal. See id.
§ 1229b(a).
1
This now-repealed statute provided:
Aliens lawfully admitted for permanent residence who
temporarily proceeded abroad voluntarily and not under an
order of deportation, and who are returning to a lawful
unrelinquished domicile of seven consecutive years, may
be admitted in the discretion of the Attorney General
without regard to the provisions of subsection (a) of
this section . . . .
8 U.S.C. § 1182(c) (repealed 1996). Notwithstanding its repeal,
section 1182(c) waivers remain available to aliens who were
eligible for such waivers at the time of their guilty plea. See
INS v. St. Cyr, 533 U.S. 289, 326 (2001), superseded by statute on
other grounds, REAL ID Act of 2005, Pub. L. No. 109-13, § 106(a),
119 Stat. 231, 310-11.
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On August 20, 2003, the immigration judge (IJ) delivered
a bench decision in which she ruled that the petitioner was not
entitled to either a section 1182(c) waiver or cancellation of
removal. In so ruling, the IJ concluded that auto stripping was
itself a crime of moral turpitude and that, therefore, the
petitioner's earlier conviction for a crime of moral turpitude —
second-degree robbery — could not be overlooked.
The petitioner took an administrative appeal from the
IJ's removal order. The BIA affirmed the removal order without
opinion. The petitioner did not seek judicial review of the BIA's
decision. That decision became final and, on February 11, 2004,
the petitioner was returned to his homeland.
Several years passed. Then, in an unrelated case, the
Supreme Court held that a failure by defense counsel to inform a
criminal defendant that a guilty plea would carry a risk of
deportation may constitute ineffective assistance of counsel. See
Padilla v. Kentucky, 130 S. Ct. 1473, 1483, 1486 (2010). Seizing
upon this holding, the petitioner (still in the Dominican Republic)
asserted that Padilla mandated vacation of his auto-stripping
conviction and that, with the auto-stripping conviction out of the
picture, he was eligible for a section 1182(c) waiver. In the
petitioner's view, this meant that he was entitled to return to the
United States.
On June 24, 2010, the petitioner filed a motion before
the BIA to reopen his removal proceedings so that he could attack
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his auto-stripping conviction under Padilla and offer his newly
conceived theory. In an attached affidavit, he vouchsafed that his
defense counsel in the auto-stripping prosecution had erroneously
advised him that a guilty plea would carry no adverse deportation
consequences. He also rehashed a litany of arguments that the IJ
had heard and rejected during the 2003 removal proceedings.
The BIA denied the motion to reopen. It first determined
that because the petitioner had filed his motion after his
departure from the United States, it lacked jurisdiction to
entertain his motion. See 8 C.F.R. § 1003.2(d). As an alternative
ground of decision, the BIA further determined that the motion was
untimely because it had been filed more than ninety days after the
final order of removal. See 8 U.S.C. § 1229a(c)(7)(C)(i); 8 C.F.R.
§ 1003.2(c)(2). Relatedly, the BIA observed that, in the first
instance, the criminal court was the appropriate venue for the
petitioner's Padilla claim and that, until the petitioner had
successfully challenged the auto-stripping conviction in a court of
competent jurisdiction, the BIA was obliged to regard the
conviction as valid for immigration purposes. This petition for
judicial review followed.
Motions to reopen removal proceedings are disfavored
because they pose a significant risk of frustrating "the compelling
public interests in finality and the expeditious processing of
proceedings." Guerrero-Santana v. Gonzales, 499 F.3d 90, 92 (1st
Cir. 2007) (quoting Raza v. Gonzales, 484 F.3d 125, 127 (1st Cir.
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2007)). We review rulings denying motions to reopen for abuse of
discretion. INS v. Doherty, 502 U.S. 314, 323 (1992); Vaz Dos Reis
v. Holder, 606 F.3d 1, 3 (1st Cir. 2010). This standard is
nuanced. While judgment calls engender classic abuse of discretion
review, the BIA's factual determinations must be accepted as long
as they are supported by substantial evidence. Vaz Dos Reis, 606
F.3d at 3; Radkov v. Ashcroft, 375 F.3d 96, 98 (1st Cir. 2004).
Moreover, the BIA's legal conclusions must be appraised de novo,
albeit with some deference "afforded to the BIA's reasonable
interpretations of statutes and regulations falling within its
purview." Ahmed v. Holder, 611 F.3d 90, 94 (1st Cir. 2010).
In this case, judicial review is subject to a further
restriction. Because the petitioner was found removable by virtue
of a conviction for a crime of moral turpitude, judicial review is
limited to constitutional claims and questions of law. See 8
U.S.C. § 1252(a)(2)(C)-(D); Larngar v. Holder, 562 F.3d 71, 75 (1st
Cir. 2009).
Aliens possess a statutory right to file a motion to
reopen removal proceedings. See 8 U.S.C. § 1229a(c)(7)(A). But
this right is not without qualification. The applicable statute
places two principal limitations on the right, one numerical and
one temporal. See id. (authorizing an alien to "file one motion to
reopen"); id. § 1229a(c)(7)(C)(i) (stating that a "motion to reopen
shall be filed within 90 days of the date of entry of a final
administrative order of removal"); see also 8 C.F.R.
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§ 1003.2(c)(2). There are exceptions to the temporal limitation,
see 8 U.S.C. § 1229a(c)(7)(C)(ii), (iv), but no such exception
applies here.
In this case, the order of removal became final early in
2004. Yet, the petitioner did not move to reopen the removal
proceedings until 2010 (more than six years later). Consequently,
the BIA did not err in finding that the motion to reopen was time-
barred.
To be sure, a failure to file a timely motion does not
automatically sound the death knell for an alien's attempt to
reopen his removal proceedings. Despite the numerical and temporal
limitations delineated in the applicable statute and regulation,
the BIA has the authority at any time, on its own initiative, to
reopen a previously decided case. See Peralta v. Holder, 567 F.3d
31, 33 (1st Cir. 2009); 8 C.F.R. § 1003.2(a). Here, however, the
BIA chose not to use its sua sponte authority to relax the time
bar. Given the circumstances of this case, the BIA's decision is
readily understood: the petitioner's request for an exception
depended on his Padilla argument, but he had made no effort in the
New York courts to set aside the auto-stripping conviction. The
BIA's refusal to allow the petitioner to mount a collateral
challenge to a criminal conviction in the immigration court seems
eminently reasonable. See Gouveia v. INS, 980 F.2d 814, 817 (1st
Cir. 1992) ("Criminal convictions cannot be collaterally attacked
during immigration proceedings."); cf. Custis v. United States, 511
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U.S. 485, 497 (1994) (holding that a defendant cannot collaterally
attack a prior state conviction during a federal sentencing
proceeding in a different case).
We need not probe this point too deeply. In the last
analysis, the decision whether to exercise this sua sponte
authority is committed to the unbridled discretion of the BIA, and
the courts lack jurisdiction to review that judgment. Neves v.
Holder, 613 F.3d 30, 35 (1st Cir. 2010) (per curiam); Peralta, 567
F.3d at 34; Luis v. INS, 196 F.3d 36, 40 (1st Cir. 1999). Thus, to
the extent that the petitioner complains that the BIA improvidently
failed to exercise its sua sponte authority to entertain his
untimely motion to reopen, we are without jurisdiction to consider
his plaint.
We need go no further.2 For the reasons elucidated
above, we deny the petition for judicial review.
So Ordered.
2
As an alternative ground for its decision, the BIA
maintained that the so-called departure bar, 8 C.F.R. § 1003.2(d),
required it to deny the petitioner's motion to reopen. Citing
Pruidze v. Holder, 632 F.3d 234, 235-41 (6th Cir. 2011), the
petitioner argues that the departure bar is unenforceable. Because
we uphold the BIA's denial of the motion to reopen as time-barred,
we need not address this alternative ground of decision.
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