Cerrato-Marquez v. Holder, Jr. , 563 F. App'x 1 ( 2014 )

Not for Publication in West's Federal Reporter
United States Court of Appeals
For the First Circuit
No. 13-1458
JAVIER ANTONIO CERRATO-MARQUEZ,
Petitioner,
v.
ERIC H. HOLDER, JR.,
Attorney General of the United States,
Respondent.
PETITION FOR REVIEW OF AN ORDER OF THE
BOARD OF IMMIGRATION APPEALS
Before
Lynch, Chief Judge,
Souter,* Associate Justice,
and Lipez, Circuit Judge.
John H. Ruginski, Jr. on brief for petitioner.
Colin J. Tucker, Office of Immigration Litigation, Civil
Division, Department of Justice, Stuart F. Delery, Assistant
Attorney General, Civil Division, and Terri J. Scadron, Assistant
Director, Office of Immigration Litigation, on brief for
respondent.
July 11, 2014
*
Hon. David H. Souter, Associate Justice (Ret.) of the Supreme
Court of the United States, sitting by designation.
SOUTER, Associate Justice. Petitioner Javier Antonio
Cerrato-Marquez seeks review of an order of the Board of
Immigration Appeals (BIA) denying his untimely motion to reopen
removal proceedings and to reconsider dismissal of his appeal of an
immigration judge's decision ordering him removed. We dismiss the
petition for lack of jurisdiction.
I.
Cerrato-Marquez, a native and citizen of Honduras,
unlawfully entered the United States in 1991 and has remained here
since then. At a hearing before an immigration judge, he admitted
that after his arrival in the United States he had twice been
convicted of possession with intent to distribute cocaine.
In 2008, Cerrato-Marquez was charged with and conceded
removability as both "[a]n alien present in the United States
without being admitted or paroled," 8 U.S.C. §1182(a)(6)(A)(i), and
an alien who "is or has been an illicit trafficker in [a]
controlled substance," id. §1182(a)(2)(C). He nevertheless sought
to forestall deportation by filing an application for withholding
of removal and for relief under the Convention Against Torture. He
claimed that, upon his return to Honduras, he would face
persecution and torture as someone who had lived in the United
States for a long time, and thus be subject to a misperception that
he was wealthy, making him a target for kidnapping and other
criminal victimization. The immigration judge denied relief
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because Cerrato-Marquez had not shown a likelihood either of
persecution as a member of a "particular social group" or of
torture. The BIA agreed in full with the immigration judge's
analysis and dismissed Cerrato-Marquez's appeal, by an order dated
March 5, 2012.
On December 27, 2012, nearly 300 days later, Cerrato-
Marquez moved to reopen the removal proceedings because, he argued,
the Government had fallen short of establishing removability, by
failing to provide records of his convictions for cocaine
distribution. The BIA denied the motion as untimely, construing it
as one both to reopen removal proceedings and to reconsider its
decision dismissing his appeal. The BIA further held that Cerrato-
Marquez had not described the sort of "exceptional situation" that
might warrant its exercise of discretionary jurisdiction to reopen
proceedings or reconsider a prior decision sua sponte, because his
motion contained no information or argument that could not have
been presented in his first appeal to the Board. In the
alternative, the BIA ruled that the Government had no obligation to
produce a record of conviction, given Cerrato-Marquez's concession
of removability and express acknowledgment of his cocaine
distribution convictions.
This petition for review followed.
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II.
Save for exceptions not to the point here, an alien's
statutory right to move to reopen removal proceedings expires "90
days [after] the date of entry of a final administrative order of
removal." 8 U.S.C. §1229a(c)(7)(A). A motion to reconsider a BIA
order must, without statutory exception, be filed even sooner,
within 30 days of a final order of removal. Id. §1229a(c)(6)(B).
The failure to file a timely motion to reopen or reconsider,
however, "does not automatically sound the death knell for an
alien's attempt to reopen his removal proceedings." Matos-Santana
v. Holder, 660 F.3d 91, 94 (1st Cir. 2011). The BIA's regulations
provide that it "may at any time reopen or reconsider on its own
motion any case in which it has rendered a decision" and further
permit "the party affected by the decision" to file written
requests for the Board to exercise this sua sponte authority. 8
C.F.R. §1003.2(a). Whether to take any of these actions, however,
"is committed [by regulation] to the unbridled discretion of the
[BIA]." Matos-Santana, 660 F.3d at 94; see also 8 C.F.R.
§1003.2(a) ("The decision to grant or deny a[n untimely] motion to
reopen or reconsider is within the discretion of the [BIA] . . . .
The [BIA] has discretion to deny a motion to reopen even if the
party moving has made out a prima facie case for relief."). Given
the absence of any articulable standard against which we could
evaluate such a discretionary determination by the BIA, we have
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held that "the courts lack jurisdiction to review" the BIA's
exercise of its sua sponte authority. Matos-Santana, 660 F.3d at
94.
Here, there is no dispute that Cerrato-Marquez did not
file his motion within the statutory limits set forth in 8 U.S.C.
§1229a(c), with the consequence that the only issue could be the
BIA's abuse of discretion in acting under §1003.2(a), which we have
no jurisdiction to examine. The petition for review is DISMISSED.
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