Roberts v. Gonzales

United States Court of Appeals
For the First Circuit

No. 04-2261

MARTIN ROBERTS,

Petitioner,

v.

ALBERTO R. GONZALES, ATTORNEY GENERAL,

Respondent.

PETITION FOR REVIEW OF AN ORDER

OF THE BOARD OF IMMIGRATION APPEALS

Before

Selya, Dyk,* and Howard,
Circuit Judges.

Khagendra Gharti Chhetry and Chhetry & Associates, P.C. on
brief for petitioner.
Peter D. Keisler, Assistant Attorney General, Civil Division,
Emily A. Radford, Assistant Director, Office of Immigration
Litigation, and Jean-Michel Voltaire, Trial Attorney, United States
Department of Justice, on brief for respondent.

September 6, 2005

__________
*Of the Federal Circuit, sitting by designation.
 SELYA, Circuit Judge. The petitioner, Martin Roberts, is

a native of Grenada. He seeks judicial review of a decision of the

Board of Immigration Appeals (BIA) affirming a denial of his motion

to reopen removal proceedings. Concluding, as we do, that the BIA

did not abuse its discretion in deeming the petitioner's motion

untimely, we deny the petition.

The facts are uncomplicated. The petitioner lawfully

entered the United States on January 20, 1994. His B-2 visa

furnished him with authorization to remain for a period not to

exceed six months. He overstayed the expiration date and accepted

employment without authorization from the Immigration and

Naturalization Service (INS). The INS subsequently apprehended

him and initiated removal proceedings.

The Immigration Judge (IJ), in an order dated February

26, 1997, adjudged the petitioner removable. The IJ's order

granted him a one-year period within which to depart voluntarily

and decreed that, should he fail to do so, he would be deported.

The petitioner ignored the voluntary departure deadline.

He remained in the United States and, in 2000, married a United

States citizen. A year later, his bride filed an I-130 application

on his behalf for a relative visa. The INS approved the

application.

The petitioner waited two more years and, in July of

2003, moved to reopen the removal proceedings to allow pursuit of

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an adjustment of status based on his marriage and the impending

birth of twins (who, when born, would be United States citizens).

The IJ denied the motion on timeliness grounds, concluding that the

petitioner's marriage was not an exceptional circumstance that

warranted a relaxation of the usual time line governing motions to

reopen. See 8 C.F.R. § 1003.23(b) (establishing time frame for

filing motions to reopen). The BIA affirmed the IJ’s decision.

This petition for judicial review followed.

In this venue, the petitioner asserts that because he

demonstrated prima facie eligibility for adjustment of status to

lawful permanent residency through his bona fide marriage to a

United States citizen, see 8 U.S.C. § 1255(e), the BIA erred in

adhering slavishly to its temporal guideposts. He adds that the

BIA's failure to weigh certain factors in his favor, including his

good character and the hardship that would befall his family

(including his two children) as a consequence of his deportation,

constituted an abuse of discretion.

Although the contours of the petitioner's arguments are

somewhat blurred, it seems that he is contending not only that the

BIA abused its discretion in finding untimeliness but also that it

erred in not disregarding timeliness concerns and invoking its sua

sponte authority to reopen the case. We address these two facets

of the petitioner's claim separately.

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 We begin with bedrock: "motions to reopen are disfavored

in immigration practice because of the compelling public interests

in finality and the expeditious processing of proceedings." Falae

v. Gonzáles, 411 F.3d 11, 14-15 (1st Cir. 2005) (citing INS v.

Abudu, 485 U.S. 94, 107-08 (1988)). Consequently, we review the

BIA's denial of a motion to reopen based on timeliness grounds

under a highly deferential abuse of discretion standard. See id.;

Jupiter v. Ashcroft, 396 F.3d 487, 490 (1st Cir. 2005). In order

to prevail under this standard, the movant must carry the heavy

burden of establishing that the BIA made an error of law or acted

in a manifestly arbitrary or capricious manner. See Carter v. INS,

90 F.3d 14, 16-17 (1st Cir. 1996).

The regulations applicable to immigration cases, which

have the force of law, stipulate that motions to reopen removal

proceedings must be filed within ninety days of the final

administrative order of removal. See 8 C.F.R. § 1003.23(b)(1).

The petitioner's motion was filed well outside this ninety-day

window and the BIA denied the motion because it had not been timely

filed. The petitioner counters that it was impossible for him to

file a timely motion to reopen because his request for reopening

stemmed from nuptials that did not occur until after the ninety-day

window had closed. To this, he adds that he was forced to postpone

the filing of his motion further because of (i) the bureaucratic

delay in the approval of his I-130 immediate relative application

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and (ii) the statutory limitation applicable to persons who flout

voluntary departure orders.

We digress for a moment because the second half of that

argument requires an explanation. Once the petitioner did not

depart voluntarily by the imposed deadline — February 27, 1998 — he

became ineligible for certain immigration benefits, including

adjustment of status, for a period of five years. See 8 U.S.C. §

1229c(d).1 Since he waited for the passage of that five-year

period before moving to reopen the removal proceedings, the

petitioner's motion was four years and 275 days late. See 8 C.F.R.

§ 1003.23(b)(1).

Moving to the substance of the petitioner's arguments, we

disagree that the BIA abused its discretion in denying the motion

to reopen. Although the time limits for filing motions to reopen

may be relaxed upon a showing of exceptional circumstances, see 8

C.F.R. § 1003.23 (b)(4), the mere fact that a petitioner makes out

a prima facie case for relief does not ensure the favorable

exercise of that discretion by the BIA. See id. § 1003.2(a);

Falae, 411 F.3d at 14-15. The BIA still possesses the right

(indeed, the duty) to weigh the equities of the case.

1
Although this statute, read literally, provides for a ten-
year period of ineligibility, a shorter five-year period applies to
the petitioner because removal proceedings were instituted in his
case prior to the repeal of former 8 U.S.C. § 1252b(e)(2)(A), which
limited ineligibility for benefits to five years from and after the
flouted departure deadline.

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 In this instance the equities are mixed. On the one

hand, the petitioner's marriage is bona fide, his character is

unblemished, and his removal apparently will result in hardship for

his wife and children. On the other hand, the petitioner's case

does not fall within the categorical exceptions to the temporal

deadline prescribed by the applicable regulation. See 8 C.F.R. §

1003.23(b)(4) (providing that exceptions may be granted if a motion

to reopen is, for example, based on an application for asylum or

withholding of removal in light of changed country circumstances,

or addresses an order that was entered in absentia, or was jointly

filed by the alien and the government). Moreover, the petitioner

thrice flouted the immigration laws — by overstaying his original

visa, by working without a "green card," and by disregarding his

court-ordered voluntary departure deadline. His current

eligibility for an adjustment of status is a direct result of those

misdeeds.

Within broad limits, reconciling such competing

centrifugal and centripetal forces is for the BIA, not for the

court of appeals. See 8 C.F.R. § 1003.2(a); see also Falae, 411

F.3d at 16 (explaining that the exercise of the BIA's discretion

entails "the weighing of multiple factors, not all of which point

in the same direction."); Luis v. INS, 196 F.3d 36, 39 (1st Cir.

1999) (finding the alien's equities to be outweighed by adverse

factors and, thus, upholding the denial of his untimely motion to

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reopen). On this scumbled record, we cannot say that the BIA's

resolution of this mix of mitigating and aggravating circumstances

was in any way arbitrary, capricious, or contrary to law.

We add only that we fully understand the BIA's reluctance

to reward the petitioner's intransigence by granting his motion to

reopen. Taking a different tack would have served to encourage,

rather than deter, disobedience of the federal immigration laws.

We conclude, therefore, that the BIA acted within the realm of its

discretion in denying the motion to reopen as untimely.

We now turn to the petitioner's challenge to the BIA's

refusal to use its sua sponte power as a vehicle for granting his

motion to reopen. Federal regulations state that the BIA "may at

any time reopen or reconsider on its own motion any case in which

it has rendered a decision." 8 C.F.R. § 1003.2. This provision is

inapplicable here because the BIA had never rendered a decision in

the petitioner's case (he did not appeal from the IJ's original

order). Its first and only involvement was when it denied the

petitioner's motion to reopen. The plain meaning of 8 C.F.R. §

1003.2(a) is to the effect that the BIA cannot invoke its sua

sponte authority in a matter if it had not rendered any decisions

in the matter prior to the time when it rejected the petitioner's

appeal from a denial of a motion to reopen. See Prado v. Reno, 198

F.3d 286, 292 (1st Cir. 1999).

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 There is a possible loophole. Like the BIA, the IJ

enjoys authority to reopen proceedings sua sponte, see 8 C.F.R. §

1003.23(b)(1), and unlike the BIA, the IJ did issue a decision in

the original removal proceedings. Theoretically, then, the

petitioner might have contended that the BIA should have compelled

the IJ to reopen based on the IJ’s sua sponte authority. See,

e.g., Enriquez-Alvarado v. Ashcroft, 371 F.3d 246, 247 (5th Cir.

2004).

With the facts of this case as they are, however, any

such effort would have been procedurally barred. By statute, a

court may review a final order of removal only if "the alien has

exhausted all administrative remedies available to [him] as of

right." 8 U.S.C. § 1252(d)(1). Courts must take that exhaustion

requirement very seriously. See Sousa v. INS, 226 F.3d 28, 31-32

(1st Cir. 2000). If an appeal to the BIA does not explicitly

request that the BIA set aside the IJ's refusal to invoke her sua

sponte authority under 8 C.F.R. § 1003.23(b)(1), the petitioner has

not preserved the issue for judicial review. See Olujoke v.

Gonzáles, 411 F.3d 16, 22-23 (1st Cir. 2005) (holding that the

doctrine of exhaustion of administrative remedies bans attempts by

petitioners to resurrect on judicial review issues which were not

raised before the BIA); Prado, 198 F.3d at 292 (finding

petitioner's claim unreviewable because she had failed to request

that the BIA invoke its sua sponte authority); see also Bernal-

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Vallejo v. INS, 195 F.3d 56, 64 (1st Cir. 1999) (explaining that

"usually issues not raised before the BIA may not be raised for the

first time on petition for review.").

This line of authority is dispositive here. The

petitioner did not ask the BIA to compel the IJ to reopen the

proceedings based on the latter's sua sponte authority to do so.

We thus would lack jurisdiction to review any such claim even if we

were to impute one to the petitioner.2

We need go no further. For the reasons elucidated above,

the petition for judicial review is denied.

So Ordered.

2
We note that, apart from the petitioner's failure to exhaust
administrative remedies, it is at least arguable that our review of
this challenge would in all events be barred because we lack
authority to review issues committed to the agency's unfettered
discretion. See Prado, 198 F.3d at 292; Luis, 196 F.3d at 40-41;
see also Heckler v. Chaney, 470 U.S. 821, 821 (1985) (explaining
that "judicial review of an administrative agency's decision is not
to be had if the statute in question is drawn so that a court would
have no meaningful standard against which to judge the agency's
exercise of discretion"). In the circumstances at hand, we need
not address this issue.

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