Lemus v. Sessions , 900 F.3d 15 ( 2018 )

United States Court of Appeals
For the First Circuit
No. 17-2068
LAURA LEMUS; MANUEL M. LEMUS,
Petitioners,
v.
JEFFERSON B. SESSIONS, III,
ATTORNEY GENERAL,
Respondent.
PETITION FOR REVIEW OF AN ORDER OF
THE BOARD OF IMMIGRATION APPEALS
Before
Torruella, Lynch, and Barron,
Circuit Judges.
Jeffrey B. Rubin, Todd C. Pomerleau, and Rubin Pomerleau P.C.
on brief for petitioners.
Elizabeth K. Fitzgerald-Sambou, Trial Attorney, Office of
Immigration Litigation, Civil Division, U.S. Department of
Justice, Chad A. Readler, Acting Assistant Attorney General, Civil
Division, and Margaret Kuehne Taylor, Senior Litigation Counsel,
on brief for respondent.
August 14, 2018
LYNCH, Circuit Judge. Laura and Manuel Lemus, both
natives of Guatemala, were ordered removed by an immigration judge
(IJ) in 2000. The Board of Immigration Appeals (BIA) denied their
appeal in 2001. Since then, the Lemuses have filed seventeen
motions with the BIA to reopen or reconsider that removal order.
Their latest motion, filed on August 29, 2017 with the BIA, claimed
that there was new relief available to them and that "exceptional
circumstances" should lead the BIA to reopen their removal
proceedings sua sponte. The BIA was unpersuaded, and said so in
a reasoned decision.
The Lemuses now petition for judicial review of the BIA's
denial of their motion. We hold that the BIA did not abuse its
discretion in denying the Lemuses' time- and number-barred motion
to reopen. The BIA also determined that sua sponte reopening was
unwarranted. We dismiss the Lemuses' challenge to that decision
for lack of jurisdiction.
I.
The Lemuses -- Laura, Manuel, and their three
children -- came to the United States from Guatemala in 1993.
Their nonimmigrant tourist visas authorized a six-month stay. They
overstayed.
In late 1997, Laura applied for asylum, listing each
family member as a derivative applicant. Laura stated in her
application that she feared she and her family would be killed if
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they returned to Guatemala. She said that she had been an active
member of the Union Centro Nacional (UCN) party. The night of an
election, armed men from the rival political party had come to
Laura's home, guns drawn, searching for her and her brother. Laura
and her brother escaped, but Laura's aunt (a fellow UCN member)
was not so fortunate. Several years later, shortly after the
Lemuses came to the United States, the UCN leader, Jorge Carpio
Nicolle, was assassinated. Laura testified to this effect before
an asylum officer. That officer determined that Laura's testimony
was not credible. Among other issues, Laura could not describe
the UCN's politics. The officer concluded that Laura had not shown
that she qualified for asylum and so he referred Laura's
application to the Immigration Court.
The Immigration and Naturalization Service, in June
1999, sent the Lemuses a Notice to Appear at removal proceedings.
The agency charged each as subject to removal. At the hearing, in
March 2000, the Lemuses conceded removability. Laura renewed her
asylum request and requested statutory withholding of removal
under 8 U.S.C. § 1231(b)(3). She repeated the political opinion
claim from her asylum application. Like the asylum officer, the
IJ found Laura's testimony not credible. He denied asylum and
statutory withholding of removal, but granted the Lemuses
voluntary departure.
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The Lemuses appealed this decision to the BIA. They
argued that the BIA should reverse the IJ for failing to find that
Laura had a "well founded fear of persecution." The BIA summarily
dismissed each appeal -- the Lemuses did not file briefs, and the
short statements in their appeal forms "fail[ed] to apprise [the
BIA] of the reasons" why it should reverse the IJ.
After the BIA entered its final removal order on October
30, 2001, the Lemuses filed seventeen motions to reopen or
reconsider. Among other things, they raised claims of ineffective
assistance of counsel and of changed country conditions in
Guatemala. The BIA denied each motion. The Lemuses filed three
petitions for our review. This Court denied each petition. See
Lemus v. Gonzales, 489 F.3d 399 (1st Cir. 2007) (denying the
petition); Lemus, et al. v. Gonzales, No. 05-1273 (1st Cir. July
12, 2005) (dismissing the petition); Lemus v. Ashcroft, No. 03-
1825 (1st Cir. Mar. 31, 2004) (summarily affirming the BIA's
decision).
In this latest motion, filed on August 29, 2017 with the
BIA, Laura and Manuel once again argued for reopening. This time
there was a new ground: their daughter, Mirna, had become a U.S.
citizen and filed visa petitions on their behalf. The visa
petitions were accepted, so the Lemuses would have been eligible
to apply to adjust their status to lawful permanent residents but
for the removal order. They further argued that the BIA should
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reopen their cases sua sponte because of "exceptional
circumstances."
The BIA denied the Lemuses' motion as untimely filed and
numerically barred. The BIA noted that potential eligibility for
adjustment of status is not an exception for the time and number
bars on motions to reopen. And the BIA declined to reopen the
Lemuses removal proceedings sua sponte because it did not consider
their situation "exceptional." The BIA noted that the Department
of Homeland Security had not joined the Lemuses' motion, but that
if it later did, the Lemuses could refile.
II.
The Lemuses' petition for review argues that the BIA
erred by denying their motion to reopen. Where we have
jurisdiction, we review the BIA's denial of a motion to reopen for
abuse of discretion. Sánchez–Romero v. Sessions, 865 F.3d 43, 45
(1st Cir. 2017).
“[E]very alien ordered removed has a right to file one
motion” with the IJ or BIA to “reopen his or her removal
proceedings.” Dada v. Mukasey, 554 U.S. 1, 4–5 (2008); see 8
U.S.C. § 1229a(c)(7)(A). That "motion to reopen shall be filed
within 90 days” of the final removal order. 8 U.S.C.
§ 1229a(c)(7)(C)(i). Here, the Lemuses brought their seventeenth
unsuccessful motion for reopening or reconsideration nearly
sixteen years after the initial removal order. Their filings gave
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no reason why the BIA should consider their submission timely,
except to say they earlier had not been eligible to apply for
adjustment of status.1 But eligibility to apply for adjustment of
status is not an exception to the number and time bars on motions
to reopen. See id. §§ 1229a(c)(7)(A), (c)(7)(C) (listing
exceptions to the bars); 8 C.F.R. § 1003.2(c)(3) (same).
Consequently, the BIA correctly held the Lemuses had failed to
justify the delay and dismissed their motion as untimely.
III.
The Lemuses also challenge the BIA's decision not to
reopen sua sponte. The BIA's regulations provide that the BIA may
reopen removal proceedings sua sponte (“on its own motion”) at any
time. 8 C.F.R. § 1003.2(a). This circuit has long held that “sua
sponte authority is committed to the unbridled discretion of the
BIA, and the courts lack jurisdiction to review that judgment.”
Charuc v. Holder, 737 F.3d 113, 115 (1st Cir. 2013) (quoting Matos–
Santana v. Holder, 660 F.3d 91, 94 (1st Cir. 2011)). The Lemuses
point to two bases for jurisdiction: the Supreme Court's decision
1 The government says that this issue was unexhausted and
waived because the Lemuses failed to point to any exceptions to
the time and number bars on their motion before the BIA or on
appeal. But this means only that they cannot now argue that they
fit into an exception to the time and number bars. This is not
their argument. The Lemuses claim that the BIA should reopen
because of new grounds for relief. They raised this point before
the BIA and on appeal. Their failure to point to any exceptions
to the time and number bars on their motion means that their
argument is meritless, not waived.
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in Reyes Mata v. Lynch, 135 S. Ct. 2150 (2015), and 8 U.S.C.
§ 1252(a)(2)(D).
Mata gives no jurisdiction to review this denial of sua
sponte reopening by the BIA. In Mata, the Supreme Court declined
to address whether appeals courts have authority to review
exercises of that discretionary power. See Mata, 135 S. Ct. at
2155. In fact, the Court acknowledged that courts of appeals have
held that they generally lack such authority. Id.This court has not determined whether 8 U.S.C.
§ 1252(a)(2)(D) gives courts of appeals jurisdiction to review,
under certain circumstances, the BIA's decision not to reopen sua
sponte. See Reyes v. Sessions, 886 F.3d 184, 188 (1st Cir. 2018).
We declined to decide that issue in Reyes and we decline to do so
here. See id. Section 1252(a)(2)(D) "only arguably applies to a
petitioner's constitutional or legal challenges if they are
colorable," id. (citing Ayeni v. Holder, 617 F.3d 67, 71 (1st Cir.
2010)), and the Lemuses' are not.
The Lemuses argue that the BIA's decision not to reopen
sua sponte denied them due process and that the BIA's explanation
of its refusal to exercise sua sponte authority was so paltry that
it likewise denied them due process. That is not so. A due
process claim can only succeed if there is a “cognizable liberty
interest,” Matias, 871 F.3d at 72 (quoting Mejia–Orellana v.
Gonzales, 502 F.3d 13, 17 (1st Cir. 2007)). But the BIA's exercise
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of its “purely discretionary” sua sponte authority “does not create
a cognizable liberty interest.” Id. This deficiency is fatal to
their claims.
The Lemuses have one final argument: that the BIA
violated an existing policy regarding reopening, making its
decision not to reopen "arbitrary, capricious, [or] an abuse of
discretion." See 5 U.S.C. § 706(2)(A); INS v. Yang, 519 U.S. 26,
32 (1996). They cite Matter of Garcia, 16 I. & N. Dec. 653 (BIA
1978), where the BIA determined that it would favorably exercise
its discretion when the movant was prima facie eligible for
adjustment of status. But this argument is unavailing. First,
Garcia was decided years before Congress enacted time and number
bars on motions to reopen. See Dada, 554 U.S. at 13 (summarizing
the relevant congressional history). Second, the BIA has on
several occasions significantly modified Garcia. See, e.g.,
Matter of Velarde-Pacheco, 23 I. & N. Dec. 253, 256 (BIA 2002),
overruled in part on other grounds by Matter of Avetisyan, 25 I.
& N. Dec. 688 (BIA 2002); Matter of H-A-, 22 I.& N. Dec. 728, 730-
36 (BIA 1999); Matter of Arthur, 20 I. & N. Dec. 475, 477-79 (BIA
1992). We have thus noted having "some doubts" about Garcia's
continuing vitality. Dawoud v. Holder, 561 F.3d 31, 35 n.5 (1st
Cir. 2009). And third, even if Garcia remains, it gives the
Lemuses no colorable claim. Garcia did not establish "an
inflexible rule" under which an immigration judge must favorably
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exercise his discretion; rather, it conferred "broad discretion."
Oluyemi v. INS, 902 F.2d 1032, 1034 (1st Cir. 1990) (quoting
Garcia, 16 I. & N. at 656). We have already concluded that the
BIA did not abuse its discretion in denying the Lemuses' time- and
number-barred motion. The Lemuses have no colorable
constitutional or legal claim on which we might base our
jurisdiction if the statute were to provide an arguable basis.
IV.
The Lemuses' petition for review is denied as to their
challenge to the BIA's determination that the motion to reopen was
untimely and number barred. It is dismissed for lack of
jurisdiction as to their challenge to the BIA's decision to not
exercise its authority to reopen sua sponte.
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