11-3117
Lopez v. Holder
BIA
A091 251 165
UNITED STATES COURT OF APPEALS
FOR THE SECOND CIRCUIT
SUMMARY ORDER
RULINGS BY SUMMARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT. CITATION TO A SUMMARY ORDER
FILED ON OR AFTER JANUARY 1, 2007, IS PERMITTED AND IS GOVERNED BY FEDERAL RULE OF
APPELLATE PROCEDURE 32.1 AND THIS COURT’S LOCAL RULE 32.1.1. WHEN CITING A SUMMARY ORDER
IN A DOCUMENT FILED WITH THIS COURT, A PARTY MUST CITE EITHER THE FEDERAL APPENDIX OR
AN ELECTRONIC DATABASE (WITH THE NOTATION “SUMMARY ORDER”). A PARTY CITING A SUMMARY
ORDER MUST SERVE A COPY OF IT ON ANY PARTY NOT REPRESENTED BY COUNSEL.
1 At a stated term of the United States Court of Appeals
2 for the Second Circuit, held at the Daniel Patrick Moynihan
3 United States Courthouse, 500 Pearl Street, in the City of
4 New York, on the 20th day of September, two thousand twelve.
5
6 PRESENT:
7 JOSÉ A. CABRANES,
8 PETER W. HALL,
9 SUSAN L. CARNEY,
10 Circuit Judges.
11 _________________________________________
12
13 DOMINGO LOPEZ, AKA JUNIOR LOPEZ,
14 Petitioner,
15
16 v. 11-3117
17 NAC
18 ERIC H. HOLDER, JR., UNITED STATES
19 ATTORNEY GENERAL,
20 Respondent.
21 _________________________________________
22
23 FOR PETITIONER: Domingo Lopez, Pro Se, New York, New
24 York.
25
26 FOR RESPONDENT: Stuart F. Delery, Acting Assistant
27 Attorney General; Thomas B.
28 Fatouros, Senior Litigation Counsel;
29 Kathryn M. McKinney, Attorney,
1 Office of Immigration Litigation,
2 United States Department of Justice,
3 Washington, D.C.
4
5 UPON DUE CONSIDERATION of this petition for review of a
6 Board of Immigration Appeals (“BIA”) decision, it is hereby
7 ORDERED, ADJUDGED, AND DECREED that the petition for review
8 is DISMISSED.
9 Petitioner Domingo Lopez, a native and citizen of the
10 Dominican Republic, seeks review of the June 28, 2011, order
11 of the BIA denying his motion to reopen and reconsider. In
12 re Domingo Lopez, No. A091 251 165 (B.I.A. June 28, 2011).
13 We assume the parties’ familiarity with the underlying facts
14 and procedural history of the case.
15 While we generally lack jurisdiction to review a final
16 order of removal issued against an alien, such as Lopez, who
17 was found removable by reason of having committed a
18 controlled substance offense, we retain jurisdiction to
19 review colorable constitutional claims or questions of law.
20 See 8 U.S.C. § 1252(a)(2)(C), (D); Durant v. INS, 393 F.3d
21 113, 115 (2d Cir. 2004) (recognizing that orders denying
22 motions to reopen are treated as final orders of removal).
23 Lopez argues that the BIA should have granted his motion to
24 reopen and reconsider based on evidence of positive
2
1 discretionary factors demonstrating his eligibility for
2 relief under section 212(h) of the Immigration and
3 Nationality Act. This argument fails to raise a
4 constitutional claim or question of law.
5 An applicant may file one motion to reopen within 90
6 days of the date on which a final administrative decision
7 was rendered in the proceeding sought to be reopened, see
8 8 U.S.C. § 1229a(c)(7)(A), (C)(i); 8 C.F.R. § 1003.2(c)(2),
9 and may file a motion to reconsider within 30 days of an
10 order, 8 U.S.C. § 1229a(c)(6)(B); 8 C.F.R. § 1003.2(b)(2).
11 Lopez does not contest the BIA’s findings that his motion,
12 whether construed as a motion to reopen or to reconsider,
13 was untimely because it was filed over four years after the
14 agency issued its final administrative order and did not
15 fall within any regulatory exception to the time
16 limitations. Because his motion could have been granted
17 pursuant only to the BIA’s discretionary authority to reopen
18 sua sponte, we lack jurisdiction to review Lopez’s argument
19 to the extent that it challenges the agency’s discretionary
20 denial of a request to reopen sua sponte. See Ali v.
21 Gonzales, 448 F.3d 515, 518 (2d Cir. 2006).
22
3
1 Although we may review such a denial when it relies on
2 a misperception of the law, see Mahmood v. Holder, 570 F.3d
3 466, 469-71 (2d Cir. 2009), the BIA did not err in finding
4 that Lopez’s evidence did not affect his statutory
5 eligibility for a section 212(h) waiver, which does not
6 waive inadmissibility for the cocaine-related drug offense
7 for which Lopez was convicted, see 8 U.S.C. § 1182(h)
8 (waiving inadmissibility only for simple possession of 30
9 grams or less of marijuana). To the extent Lopez also
10 argues that his conviction did not make him ineligible for
11 section 212(h) relief because he was not a lawful permanent
12 resident, he failed to exhaust that argument and we decline
13 to consider it. See Lin Zhong v. U.S. Dep’t of Justice, 480
14 F.3d 104, 119-20 (2d Cir. 2007) (noting that the issue
15 exhaustion requirement is mandatory). Accordingly, we lack
16 jurisdiction to review the BIA’s denial of reopening and
17 reconsideration. See 8 U.S.C. § 1252(a)(2)(C), (D).
18 For the foregoing reasons, the petition for review is
19 DISMISSED. As we have completed our review, any stay of
20 removal that the Court previously granted in this petition
21 is VACATED, and any pending motion for a stay of removal in
22 this petition is DISMISSED as moot. Any pending request for
4
1 oral argument in this petition is DENIED in accordance with
2 Federal Rule of Appellate Procedure 34(a)(2), and Second
3 Circuit Local Rule 34.1(b).
4 FOR THE COURT:
5 Catherine O’Hagan Wolfe, Clerk
6
5