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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