16-2843
Juarez-Munoz v. Sessions
BIA
Montante, IJ
A200 562 138
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
TO 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 Thurgood Marshall
3 United States Courthouse, 40 Foley Square, in the City of
4 New York, on the 17th day of November, two thousand
5 seventeen.
6
7 PRESENT: DENNIS JACOBS,
8 GERARD E. LYNCH,
9 RAYMOND J. LOHIER, JR.,
10 Circuit Judges.
11 _____________________________________
12
13 FRANCISCO RONALDI JUAREZ-MUNOZ,
14 Petitioner,
15
16 v. 16-2843
17 NAC
18 JEFFERSON B. SESSIONS III,
19 UNITED STATES ATTORNEY GENERAL,
20 Respondent.
21 _____________________________________
22
23 FOR PETITIONER: Jose Perez, Syracuse, NY.
24
25 FOR RESPONDENT: Chad A. Readler, Acting Assistant
26 Attorney General; Cindy S.Ferrier,
27 Assistant Director; Song E. Park,
28 Senior Litigation Counsel, Office
29 of Immigration Litigation, United
30 States Department of Justice,
31 Washington, DC.
1 UPON DUE CONSIDERATION of this petition for review of a
2 Board of Immigration Appeals (“BIA”) decision, it is hereby
3 ORDERED, ADJUDGED, AND DECREED that the petition for review
4 is DENIED.
5 Petitioner Francisco Ronaldi Juarez-Munoz, a native and
6 citizen of Mexico, seeks review of a July 13, 2016,
7 decision of the BIA affirming a June 4, 2015, decision of
8 an Immigration Judge (“IJ”) denying Juarez-Munoz’s motions
9 to reconsider and reopen. In re Francisco Ronaldi Juarez-
10 Munoz, No. A 200 562 138 (B.I.A. July 13, 2016), aff’g No. A
11 200 562 138 (Immig. Ct. Buffalo, N.Y. June 4, 2015). We
12 assume the parties’ familiarity with the underlying facts
13 and procedural history in this case.
14 We review the decision of the IJ as supplemented by the
15 BIA. See Yan Chen v. Gonzales, 417 F.3d 268, 271 (2d Cir.
16 2005). We review the denial of motions to reconsider and
17 reopen for abuse of discretion. Jian Hui Shao v. Mukasey,
18 546 F.3d 138, 173 (2d Cir. 2008). “An abuse of discretion
19 may be found in those circumstances where the . . .
20 decision provides no rational explanation, inexplicably
21 departs from established policies, is devoid of any
2
1 reasoning, or contains only summary or conclusory
2 statements.” Kaur v. BIA, 413 F.3d 232, 233 (2d Cir. 2005)
3 (internal quotation marks omitted).
4 A motion to reconsider must be filed within 30 days of
5 the “entry of a final administrative order of removal,” and
6 a motion to reopen must be filed within 90 days. 8 U.S.C.
7 § 1229a(c) (6)(B), (7)(C)(i); 8 C.F.R. § 1003.23(b)(1). At
8 Juarez-Munoz’s request, the IJ issued a voluntary departure
9 order in October 2014. That order became a “final
10 administrative order of removal” 30 days later, in November
11 2014, when Juarez-Munoz’s time to appeal to the BIA
12 expired. 8 U.S.C. § 1101(a)(47)(B) (providing, in relevant
13 part, that a removal order becomes final on “the expiration
14 of the period in which the alien is permitted to seek
15 review of such order by the [BIA]”). Juarez-Munoz’s
16 February 2015 motion to reconsider and April 2015 motion to
17 reopen were therefore untimely.
18 The agency denied sua sponte reconsideration based on
19 Juarez-Munoz’s concession of alienage. We lack
20 jurisdiction to review a decision declining to reconsider
21 or reopen sua sponte absent a misperception of the law,
3
1 which did not occur here. Mahmood v. Holder, 570 F.3d 466,
2 469 (2d Cir. 2009); Ali v. Gonzales, 448 F.3d 515, 518 (2d
3 Cir. 2006).
4 Juarez-Munoz argues that the BIA misperceived the law
5 with regard to the Fourth Amendment claim that his
6 concession of alienage was illegally obtained, and must
7 therefore be suppressed. But suppression is unwarranted
8 where a concession of alienage is “not fruit of the
9 illegality, but of an intervening act of free will, i.e.,
10 an alien’s own choice to concede his removability.”
11 Vanegas-Ramirez v. Holder, 768 F.3d 226, 236 (2d Cir. 2014)
12 (internal quotation marks omitted). As in Vanegas-Ramirez,
13 Juarez-Munoz’s concession was the product of a tactical
14 decision to obtain voluntary departure and avoid the
15 stigmas and penalties associated with forced removal. Id.
16 at 235; see Thapa v. Gonzales, 460 F.3d 323, 328 (2d Cir.
17 2006) (describing benefits of voluntary departure).
18 Moreover, the agency did not err in finding an unsigned
19 affidavit to be insufficient evidence of a Fourth Amendment
20 violation. See Maldonado v. Holder, 763 F.3d 155, 161 (2d
21 Cir. 2014) (explaining that “unless a petitioner is first
4
1 required to submit an affidavit that could support a basis
2 for excluding the evidence, an evidentiary hearing would be
3 required in every deportation proceeding” (internal
4 quotation marks and citation omitted)).
5 Juarez-Munoz sought reopening so that he could seek a
6 favorable exercise of prosecutorial discretion in the form
7 of Deferred Action for Parents of Americans and Lawful
8 Permanent Residents, a program the Government has
9 rescinded. Accordingly, the motion sought relief that no
10 longer exists.
11 For the foregoing reasons, the petition for review is
12 DENIED. As we have completed our review, Juarez-Munoz’s
13 request for stay of removal is DISMISSED as moot.
14 FOR THE COURT:
15 Catherine O’Hagan Wolfe, Clerk
5