Ramirez Matias v. Sessions

United States Court of Appeals
For the First Circuit

No. 16-2474

JUAN RAMIREZ MATIAS,

Petitioner,

v.

JEFFERSON B. SESSIONS III, Attorney General,

Respondent.

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

Before

Thompson, Kayatta, and Barron,
Circuit Judges.

Jason Panzarino and The Law Office of Johanna Herrero on brief
for petitioner.
Allison Frayer, Trial Attorney, Office of Immigration
Litigation, Civil Division, Chad A. Readler, Acting Assistant
Attorney General, Civil Division, and Jessica A. Dawgert, Senior
Litigation Counsel, Office of Immigration Litigation, Civil
Division, on brief for respondent.

September 8, 2017
 THOMPSON, Circuit Judge. Petitioner Juan Ramirez Matias

("Ramirez") challenges the Board of Immigration Appeals's ("BIA")

denial of his motion to exercise its sua sponte authority to reopen

his case and grant his request for cancellation of removal. We

find that even if we have jurisdiction to consider his appeal, we

must still deny Ramirez's petition.

BACKGROUND

Ramirez is no stranger to this court: in 2014, he

petitioned for review of the BIA's denial of his application for

cancellation of removal (as well as some other forms of relief

that are not relevant to this appeal). Ramirez-Matias v. Holder,

778 F.3d 322, 324 (1st Cir. 2015). Because we've laid out most of

the relevant facts once before, here we keep it brief.

Ramirez was served with a notice to appear in 2008,

alleging that he was removable because he was "[a]n alien present

in the United States who has not been admitted or paroled." See

8 U.S.C. § 1182(a)(6)(A)(i). Through counsel, he conceded the

point but applied for cancellation of removal under the Nicaraguan

Adjustment and Central American Relief Act ("NACARA"), Pub. L. No.

105-100, §§ 201-204, 111 Stat. 2160, 2196-2201 (codified as amended

in scattered sections of 8 U.S.C.).1 NACARA applicants must make

1 We note here that Ramirez has been represented at every
stage of these proceedings.
- 2 -
a handful of showings by a preponderance of the evidence to be

eligible--most relevant here is that the applicant be "a person of

good moral character," 8 C.F.R. § 1240.66(b)(3)--and even then

"the applicant must . . . persuade the immigration court that he

merits a favorable exercise of its discretion." Ramirez-Matias,

778 F.3d at 325-26.

Ramirez's application was denied in 2012 after the

Immigration Judge ("IJ") found that Ramirez had not shown either.

Specifically, the IJ noted that Ramirez was arrested twice: once

in 1994 and once in 2006 for "very serious assaultive behavior

towards the mothers of his children." Both women testified that

Ramirez did not hit them, and Ramirez himself denied the

"assaultive behavior," claiming that the police lied and both

incidents were misunderstandings. But for his part, the IJ thought

it more likely that Ramirez was the one telling a lie. Ramirez

appealed, but the BIA affirmed: there was no "clear error" in the

IJ's "finding that the police reports were more reliable than his

or his witness[es] statements."

Ramirez petitioned this court for review of that

finding. Id. at 324. Because NACARA relief is a discretionary

determination, we usually do not have jurisdiction to review a BIA

order denying such relief. Id. at 326. There is an exception to

this general rule "when the claim presented to a federal court

embodies colorable constitutional claims or questions of law."
- 3 -
Id. Ramirez's petition contained neither. Instead, we found his

claim boiled down to a "disagreement with the agency's view of the

relative credibility of the police reports and the testimony

proffered to contradict them. That is a factual determination

and, therefore, a determination that we have no jurisdiction to

review." Id. So, it was back to the drawing board for Ramirez.

In 2016, over a year later, Ramirez fired his next shot

at the IJ's decision, and this time he had an argument bearing the

"constitutional" label at the ready. In his "Motion to Reopen

Pursuant to this Board's Sua Sponte Authority," Ramirez argued

that his procedural-due-process rights to a fair hearing were

violated because of translation difficulties. We will get into

the details of the claim a little later, but for now here's the

gist: Ramirez and his wife, Lucia Ahilon Pablo ("Ahilon"), are

native speakers of Todos Santos Mam, but he used a Spanish

interpreter and Ahilon's interpreter spoke a different dialect of

Mam. As a result, some things, he says, were "lost in

translation." According to Ramirez's argument, the IJ's adverse

credibility finding (that is, the IJ's decision to trust the police

reports over Ramirez's story) resulted from these mistranslations,

so he should get a do-over with an interpreter who speaks Todos

Santos Mam. Ramirez conceded his motion was untimely--and he

offered no explanation for his nearly four-year delay in bringing

- 4 -
these alleged hearing-level translation difficulties to the BIA's

attention. The BIA denied the motion:

The motion is untimely filed and has not been shown
to come within an exception to the time limits
imposed by law on motions to reopen or reconsider
removal proceedings. The respondent has offered no
explanation for the delay in making the due process
and other arguments now being made. Further, we do
not find that exceptional circumstances warranting
the sua sponte reopening of these proceedings have
been demonstrated. Accordingly, the untimely
motion is denied.

(citations omitted).

Undeterred, Ramirez appealed again, and so here we are

today.

ANALYSIS

Ramirez renews his mistranslation-based due-process

claim on appeal, and adds one more: the BIA abused its discretion

by failing to give a reasoned explanation of its decision not to

exercise its sua sponte authority.2 The government counters that

this court does not have jurisdiction to review either claim. We

briefly address the question of our jurisdiction, but find it's

2 If Ramirez thinks this was a motion under 8 C.F.R.
§ 1003.2(c)(2) or some other provision of the immigration laws (he
notes in his appellate brief that the "title of a motion is not
dispositive" and his motion was not directed "simply" to the BIA's
sua sponte authority) we consider the argument waived for lack of
developed argumentation--he doesn't do us (or himself) the favor
of explaining what else the motion could have been based on. See
Caldero-Guzman v. Holder, 577 F.3d 345, 349 (1st Cir. 2009).
- 5 -
not as clear-cut as the government says--so, we dodge it and

explain why Ramirez still cannot prevail.

I. Jurisdiction

We start with the jurisdictional issue. Ramirez

appealed to the BIA's sua sponte authority under 8 C.F.R.

§ 1003.2(a), which provides that "[t]he Board may at any time

reopen or reconsider on its own motion any case in which it has

rendered a decision." As the government points out, we have

repeatedly held that we do not have jurisdiction to review

challenges to the BIA's failure to exercise its sua sponte

authority because such decisions are "committed to its unfettered

discretion." Luis v. INS, 196 F.3d 36, 40 (1st Cir. 1999). Because

"no judicially manageable standards are available for judging how

and when [the BIA] should exercise its discretion, . . . it is

impossible to evaluate [the] agency action for 'abuse of

discretion'" so "the very nature of the claim renders it not

subject to judicial review." Id. (quoting Heckler v. Chaney, 470

U.S. 821, 830 (1985)); see also Neves v. Holder, 613 F.3d 30, 35

(1st Cir. 2010); Caldero-Guzman, 577 F.3d at 348.

But Ramirez claims that our case law precluding our

jurisdiction over the BIA's failure to exercise its sua sponte

authority should not stop us from exercising jurisdiction in this

case. He seems to give us two reasons why. First, he claims--

without explanation--that the Supreme Court's decision in Kucana
- 6 -
v. Holder, 558 U.S. 233 (2010), gives us jurisdiction to review

appeals to the BIA's sua sponte authority. His Kucana-based

argument is a non-starter: we have already rejected the contention

that Kucana, 558 U.S. at 252 n.18, in which the Supreme Court

explicitly took no position on the Courts of Appeals' practice of

declining to exercise jurisdiction over sua sponte matters, has

any impact on our no-jurisdiction rule. Neves, 613 F.3d at 35.

Ramirez gives us no reason to change course now.

Second, even if our pre-Kucana no-jurisdiction rule

still holds sway, Ramirez says we have jurisdiction by statute:

8 U.S.C. § 1252(a)(2)(D) provides that "[n]othing in . . . any

. . . provision of this chapter (other than this section) which

limits or eliminates judicial review, shall be construed as

precluding review of constitutional claims or questions of law

raised upon a petition for review filed with an appropriate court

of appeals in accordance with this section." His claims are

constitutional, he says, ergo we have jurisdiction to consider

them on the merits under § 1252(a)(2)(D).

Unlike his first argument, there might be some meat on

these bones. Our no-jurisdiction rule originated with Luis, 196

F.3d at 40, but that case was decided years before the 2005 passage

of § 1252(a)(2)(D), so the fact that we announced such a blanket

rule then does not decide whether § 1252(a)(2)(D) gives us

jurisdiction today. See REAL ID Act of 2005, 119 Stat. 231; 14A
- 7 -
Arthur R. Miller, et al., Federal Practice and Procedure § 3664

(4th ed. 2008). Furthermore, we have previously identified

§ 1252(a)(2)(D) as a potential jurisdiction-restorer over

constitutional claims brought in motions for sua sponte relief.

Guerrero v. Holder, 766 F.3d 122, 126 n.12 (1st Cir. 2014) (noting

the government's contrary argument, but declining to decide the

question because the petitioner made no § 1252(a)(2)(D)-related

argument). But, we are aware of no First Circuit case--and the

parties point us to none--in which we have addressed whether

§ 1252(a)(2)(D) has any effect on Luis's no-jurisdiction rule.

Nonetheless, as Ramirez points out, the Seventh Circuit

has found that § 1252(a)(2)(D) does, indeed, give it jurisdiction

to consider legal and constitutional claims presented in appeals

to the BIA's sua sponte authority. That court reasons that "the

general 'no law to apply' principle of judicial review of

administrative action"--that is, the principle we applied in Luis

to find that we had no jurisdiction to review sua sponte matters--

"has been superseded in the immigration context by 8 U.S.C. §

1252(a)(2)[(D)]." Cevilla v. Gonzales, 446 F.3d 658, 660 (7th

Cir. 2006). In that circuit, then, appellate jurisdiction "extends

to the Board's refusal to reopen . . . removal proceedings sua

sponte" where the petitioner "raises a constitutional claim or

legal question with regard to his underlying order of removal."

Zambrano-Reyes v. Holder, 725 F.3d 744, 751 (7th Cir. 2013). Some
- 8 -
other circuits agree. Nawaz v. Holder, 314 F. App'x 736, 737 (5th

Cir. 2009) (per curiam) (no jurisdiction to review sua sponte

denial, with the exception of "constitutional challenges that were

raised before the BIA"); Tamenut v. Mukasey, 521 F.3d 1000, 1005

(8th Cir. 2008) (per curiam) (same). On the other hand, in

examining its own Luis-based no-jurisdiction rule, the Sixth

Circuit has found that § 1252(a)(2)(D) creates no such

constitutional-claim toehold. Rais v. Holder, 768 F.3d 453, 464

(6th Cir. 2014); see Gor v. Holder, 607 F.3d 180, 186 (6th Cir.

2010). After all, it reasons, § 1252(a)(2)(D) only restores

jurisdiction where it was first taken away by some "other provision

of [that] chapter," so the statute "has no bearing on the question

of whether courts may review the BIA's exercise of its sua sponte

authority, for which no chapter of any legislation provides."

Rais, 768 F.3d at 464.

Although Ramirez's briefs bring this jurisdictional

point to our attention, he does not explain what we should do about

it (other than take jurisdiction to favorably decide the merits of

his appeal, of course). In fact, Ramirez's arguments do not

transcend his bald assertions that Kucana, Zambrano-Reyes, and

§ 1252(a)(2)(D) give us jurisdiction here. The government, for

its part, argues that we never have jurisdiction over appeals to

the BIA's sua sponte authority, but makes no mention of this

constitutional-claim wrinkle. But we don't have to decide what to
- 9 -
do about the issue now. See Seale v. INS, 323 F.3d 150, 157 (1st

Cir. 2003) (taking a similar approach). The problems with

Ramirez's appeal are titanic, and the jurisdictional question is

just the tip of the proverbial iceberg. So, we assume the

§ 1252(a)(2)(D) exception applies and we carry on.

II. Mistranslation-Based Due-Process Claim

Ramirez is a native speaker of Todos Santos Mam, but he

elected to use a Spanish interpreter at his hearing. According to

Ramirez, he and the interpreter did not always understand each

other, so parts of his testimony were "lost in translation."3

Ramirez claims that Ahilon's testimony (Ramirez's wife and

witness) was also infected by translation errors because she is a

native speaker of Todos Santos Mam but the interpreter spoke a

different Mam dialect. Between the two, Ramirez claims that the

translation services provided at his hearing were so inadequate

3
According to his brief on appeal, Ramirez "specifically
chose to proceed with a Spanish interpreter because he had heard
and noticed mistranslations with the Mam interpreter during his
wife's testimony, and therefore decided it would be safer to
proceed in Spanish, which is not his native language." The brief
cites nothing in the record to support this contention--and the
hearing transcript reveals that Ramirez testified before his wife.
According to his affidavit, Ramirez elected to proceed in Spanish
because he believed he "was more than capable [of] speaking in
Spanish" and "knew how few people spoke Mam--particularly the Todos
Santos dialect," so "it made sense for [him] to proceed with a
Spanish interpreter." In any case, we take the gist of his
argument to be that miscommunications arose from his decision to
use a Spanish interpreter because he is not a native Spanish
speaker.
- 10 -
that they violated his due-process rights. First, we present the

relevant facts and Ramirez's argument, then we give our take.

a) Background

Ramirez testified first at his hearing. His primary

mistranslation-related contention is about who he said called the

police on the night of one of his arrests. When asked by his

attorney to explain what happened, Ramirez says that he explained

in Spanish, "my mother-in-law was dead so my father-in-law called

the police, my wife was yelling in Mam and they didn't know what

was going on." Although this version of events also appears in

the transcript, he claims in his appellant brief that the audio

recording of the hearing shows that the translator mistranslated

this statement as: "my father-in-law was dead so my mother-in-

law called the police."4 In his affidavit, Ramirez gives a

different version of events, claiming that the translator erred

because "I did not state anything about my father-in-law contacting

4 We include this point here to explain the basis of Ramirez's
argument on appeal. But Ramirez did not provide us with a copy of
the recording or an alternative transcript to show that this so-
called misinterpretation occurred. It is his duty to support his
claims with record evidence. See Fed. R. App. P. 10(c), 11(a); De
Araujo v. Gonzales, 457 F.3d 146, 155 (1st Cir. 2006) (citing 8
C.F.R. § 1003.2(c)(1)); United States v. One Motor Yacht Named
Mercury, 527 F.2d 1112, 1113 (1st Cir. 1975) ("The burden is on
the appellant to provide this court with an appendix sufficient to
support its points on appeal."). Because he did not, we cannot
evaluate this part of his claim. But as we will explain, even if
we assume the events occurred as described in his brief, he still
cannot make out a due-process claim.
- 11 -
the police." His appeal brief does not explain the discrepancy

between his affidavit and his argument on appeal. However, it

does point out that Ramirez later testified that he "never knew

who called the police."

Immediately after Ramirez explained (according to the

transcript and his argument to us, anyway) that his father-in-law

called the police, his Spanish-language interpreter asked to

address the Judge, then said: "Would it be okay to ask him if he

feels more comfortable in Mam than in Spanish? It may not be the

case, but I have the feeling that it could be." The interpreter

asked Ramirez, then said, "Spanish is okay." In his affidavit,

Ramirez claims that "there were also points in which the

interpreter sought to clarify some of the things I was saying in

response to the questioning--as if she were unable to understand

the Spanish that I was speaking." No such requests for

clarification appear in the transcript.

As for Ramirez's wife, Ahilon testified subsequent to

Ramirez and through a Mam interpreter. She avers in an affidavit

filed in support of Ramirez's motion that she had "difficulty

understanding the interpreter," and she thinks the interpreter had

difficulty understanding her, too. As a result "I surely expressed

to the interpreter . . . my difficulties either by asking for

repetition and/or rephrasing." According to Ramirez's brief, the

audio recording of the hearing shows that the interpreter asked
- 12 -
Ahilon to repeat herself twice during her testimony. These

instances do not appear in the transcript. Neither Ramirez nor

Ahilon objected to the translations rendered at the hearing, nor

did Ramirez air this argument in his first round of appeals--as

the BIA pointed out in its order denying sua sponte relief.

Nevertheless, Ramirez now argues that these aggregated

translation difficulties violated his due-process rights. Had he

"been afforded a competent translation of his testimony as is his

due process right," he argues, "he would have been found credible

by the Immigration Judge"--meaning the IJ would have believed his

story about what happened the nights he was arrested, in lieu of

the police reports--so the IJ would have found him to be a person

of "good moral character" and granted his request for NACARA

relief. The government disagrees.

b) Mistranslation Analysis

We review Ramirez's mistranslation-based due-process

claim de novo, bearing in mind that "not every procedural misstep

or difficulty raises anything like a constitutional issue.

Procedural due process protects a right to a fundamentally fair

proceeding; but few proceedings are perfect and one can have real

errors, including ones that adversely affect a party's interests,

without automatically violating the Constitution." Teng v.

Mukasey, 516 F.3d 12, 17 (1st Cir. 2008). To prevail on a

translation-based due-process claim, allegations of translation
- 13 -
difficulties are not enough; the petitioner must show that "a more

proficient or more accurate interpretation would likely have made

a dispositive difference in the outcome of the proceeding." Id.

at 17-18 (quoting Harutyunyan v. Gonzales, 421 F.3d 64, 70 (1st

Cir. 2005)); see also Chan v. Ashcroft, 93 F. App'x 247, 252-53

(1st Cir. 2004) (rejecting translation-based due-process claim

where the petitioner made no objection at the hearing, identified

no specific mistranslations, and presented no evidence that

alleged mistranslations affected outcome). Ramirez has not done

so.

Ramirez's mistranslation claim finds next to no support

in the record. Ramirez only points to one specific instance of (a

potential) mistranslation--the issue of who called the police.

But he does not explain how that translation error about a minor

detail in his story (assuming that mistranslation did, in fact,

occur) could have made a "dispositive difference in the outcome of

the proceeding." Teng, 516 F.3d at 17 (internal citations

omitted). Ramirez and Ahilon generally aver that they believe

that their translators did not always understand them, but they

point to nothing in the record to indicate that these alleged

misunderstandings had any impact on their testimony--in other

- 14 -
words, they do not demonstrate that these difficulties had any

impact on the outcome, either.5

Without an outcome-influencing mistranslation, our work

here is done. In his motion to the BIA for sua sponte relief, and

in his brief to us, he contends that the IJ misweighed the evidence

and should have credited his testimony and evidence over the police

reports. But, as we have already explained to Ramirez himself in

appeal number one, that type of fact-based claim is one we cannot

review. Ramirez-Matias, 778 F.3d at 326-27.

III. Explanation Error

The mistranslation claim down, we have one to go:

Ramirez says the BIA's explanation of its refusal to exercise its

sua sponte authority was so paltry that it violated his due-process

rights. Recall, the BIA gave two reasons for denying his motion:

it said that Ramirez failed to explain his delay in offering his

translation-based due-process argument, and found that Ramirez had

not shown that exceptional circumstances warranted reopening his

case. But even if we deemed the BIA's explanation lacking in

sufficient detail (which we doubt), a petitioner, regardless,

cannot state a colorable due-process claim if he does not have a

5
Indeed, the stories presented in Ramirez and Ahilon's post-
hearing affidavits--the stories Ramirez claims the IJ should have
credited in lieu of the police reports--are the same as the stories
the parties presented to the IJ at the hearing.
- 15 -
cognizable property or liberty interest at stake. Mejia-Orellana

v. Gonzales, 502 F.3d 13, 17 (1st Cir. 2007). Remember, Ramirez

appealed only to the BIA's sua sponte authority, and that relief

is purely discretionary--meaning it "does not create a cognizable

liberty interest." Id. (citing Jupiter v. Ashcroft, 396 F.3d 487,

492 (1st Cir. 2005)); see Chun Xin Chi v. Holder, 606 F.3d 6, 10

(1st Cir. 2010); Naeem v. Gonzales, 469 F.3d 33, 39 (1st Cir.

2006). Therefore, even assuming we have jurisdiction to consider

constitutional claims where a petitioner sought only sua sponte

relief before the BIA, this second jurisdictional issue is fatal

to Ramirez's explanation-based claim. See Ramirez-Matias, 778

F.3d at 326-27.

CONCLUSION

Ramirez's petition for review is denied.

- 16 -