Wilfredo Lora-Gonzalez v. Attorney General United States , 632 F. App'x 678 ( 2015 )

NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
___________
No. 15-1281
___________
WILFREDO LORA-GONZALEZ,
Petitioner
v.
ATTORNEY GENERAL UNITED STATES OF AMERICA,
Respondent
____________________________________
On Petition for Review of an Order of the
Board of Immigration Appeals
(Agency No. A038-507-690)
Immigration Judge: Honorable Paul Grussendorf
____________________________________
Submitted Pursuant to Third Circuit LAR 34.1(a)
July 6, 2015
Before: FUENTES, SHWARTZ and ROTH, Circuit Judges
(Opinion filed: December 2, 2015 )
___________
OPINION*
___________
PER CURIAM
*
This disposition is not an opinion of the full Court and pursuant to I.O.P. 5.7 does not
constitute binding precedent.
Pro se petitioner Wilfredo Gonzalez-Lora1 petitions for review of an order of the
Board of Immigration Appeals (BIA) denying his motion to reopen or reconsider. For
the reasons detailed below, we will deny the petition for review in part and dismiss it in
part.
According to his pleadings, Gonzalez-Lora entered the United States from the
Dominican Republic in 1984 as a lawful permanent resident. In 1998, he was convicted
in the Eastern District of Virginia of conspiracy to distribute and possess with intent to
distribute heroin and cocaine in violation of 21 U.S.C. §§ 841, 846, and sentenced to 292
months’ imprisonment. See United States v. Lora, 26 F. App’x 149, 150 (4th Cir. 2001)
(non-precedential).
In 1999, the INS charged Gonzalez-Lora with being removable because he had
been convicted of a controlled-substance violation, see 8 U.S.C. § 1227(a)(2)(B)(i), and
an aggravated felony, see § 1227(a)(2)(A)(iii). An Immigration Judge found Gonzalez-
Lora removable as charged, the BIA dismissed his appeal, and we denied his petition for
review. See Gonzalez-Lora v. Att’y Gen., 314 F. App’x 447, 449-50 (3d Cir. 2008) (non-
precedential). In support of his petition for review, Gonzalez-Lora argued, among other
things, that the “IJ improperly ordered his removal based on a drug conspiracy conviction
that was still being appealed.” Id. at 449 n.2. We concluded that we lacked jurisdiction
to review that argument because Gonzalez-Lora had not exhausted it before the BIA. See
1
In the administrative record, the petitioner is identified as “Wilfredo Lora-Gonzalez,”
while the petitioner identifies himself as “Wilfredo Gonzalez-Lora.” We will use the
2
id.
Gonzalez-Lora has since filed four motions to reopen or reconsider with the BIA,
each of which the BIA has denied. In the most recent motion, which is the subject of this
petition for review, Gonzalez-Lora argued that this Court’s decision in Orabi v. Attorney
General, 738 F.3d 535, 543 (3d Cir. 2014), establishes that the agency erred in ordering
him removed based on a conviction that, at the time that the IJ and BIA issued their
decisions, he was challenging in the Supreme Court through a petition for certiorari. The
BIA denied the motion. The BIA first concluded that the motion was untimely and
number-barred. Moreover, the BIA concluded that there was not “any exceptional
situation present in this case to warrant the exercise of the Board’s limited sua sponte
authority.” The BIA also noted that Gonzalez-Lora had failed to present evidence in
support of his allegations, as required by 8 C.F.R. § 1003.2(c)(1). Gonzalez-Lora filed a
timely petition for review to this Court.
We have jurisdiction to review the BIA’s denial of Gonzalez-Lora’s motion under
8 U.S.C. § 1252(a)(1). We review a denial of a motion to reopen or a motion to
reconsider for abuse of discretion, and will not disturb the BIA’s decision “unless it is
arbitrary, irrational, or contrary to law.” Pllumi v. Att’y Gen., 642 F.3d 155, 158 (3d Cir.
2011) (quotation marks omitted).
As the BIA concluded, Gonzalez-Lora’s motion was plainly untimely. A motion
for reconsideration must be filed within 30 days of a final order of removal, see 8 U.S.C.
latter surname throughout this opinion. 3
§ 1229a(c)(6)(B), while a motion to reopen, with certain exceptions not relevant here,
must be filed within 90 days of the removal order, see 8 U.S.C. § 1229a(c)(7)(C)(i); 8
C.F.R. § 1003.2(c)(2). Gonzalez-Lora filed the motion at issue here in November 2014
— nearly 14 years after the BIA entered the final order in his case. Therefore, the BIA
did not err in concluding that the motion was time-barred.
Gonzalez-Lora argues that the BIA should have reopened the removal order sua
sponte. However, we generally lack jurisdiction to review the BIA’s decision declining
to exercise its discretion to reopen or reconsider the case. See Calle–Vujiles v. Ashcroft,
320 F.3d 472, 475 (3d Cir. 2003). We have recognized two exceptions: we may consider
whether the BIA’s decision “is based on a false legal premise,” Pllumi, 642 F.3d at 160,
or whether the BIA has “restricted the exercise of its discretion by establishing a ‘general
policy’ of reopening sua sponte” under specific circumstances, Cruz v. Att’y Gen., 452
F.3d 240, 249 (3d Cir. 2006).
Neither exception applies here. The BIA did not rely on a false legal premise; it
accurately summarized the standards for motions to reopen and reconsider, and correctly
observed that, contrary to the regulations, Lora-Gonzalez had failed to present evidence
in support of his allegations. See 8 C.F.R. § 1003.2(c)(1); Guan Shan Liao v. U.S. Dep’t
of Justice, 293 F.3d 61, 73 (2d Cir. 2002).
Nor has Gonzalez-Lora established that the BIA maintains a “general policy” of
reopening sua sponte when aliens seek to advance a previously unexhausted claim that a
conviction was not final for immigration purposes. While the BIA has recognized that it
4
will sometimes elect to reopen sua sponte when there has been a “fundamental change in
the law,” In re G-D-, 22 I. & N. Dec. 1132, 1135 (BIA 1999) (en banc), we are satisfied
that this general standard has not constrained the BIA’s ability to refuse to exercise its
sua sponte authority in the circumstances present here. See generally Orabi, 738 F.3d at
543 (holding that “the principle announced and held in Ozkok[, 19 I. & N. Dec. 546 (BIA
1988)] — that a conviction does not attain a sufficient degree of finality for immigration
purposes until direct appellate review of the conviction has been exhausted or waived —
is [] alive and well in this Circuit” (quotation marks, footnote omitted)). Therefore, we
lack jurisdiction to review the BIA’s refusal to reopen the matter sua sponte.
Accordingly, we will dismiss Gonzalez-Lora’s petition for review in part and deny
it in part.2 The temporary stay dated November 27, 2015, is vacated, and Gonzalez-
Lora’s motion for a stay of removal is denied. See generally In re Revel AC, Inc., 802
F.3d 558, 568 (3d Cir. 2015) (explaining that, to obtain a stay, a party must make a strong
showing that he will succeed on the merits).
2
The Government’s February 4, 2015 motion for summary action, filed before the case
was fully briefed, is denied. Gonzalez-Lora’s motion to compel service of the
Government’s motion for summary action is also denied.
5