Morones-Quinones v. Lynch , 637 F. App'x 513 ( 2016 )

FILED
United States Court of Appeals
UNITED STATES COURT OF APPEALS Tenth Circuit
FOR THE TENTH CIRCUIT February 23, 2016
_________________________________
Elisabeth A. Shumaker
Clerk of Court
LUZ DEL CARMEN
MORONES-QUINONES,
Petitioner,
v. No. 15-9545
(Petition for Review)
LORETTA E. LYNCH,
United States Attorney General,
Respondent.
_________________________________
ORDER AND JUDGMENT *
_________________________________
Before GORSUCH, McKAY, and BACHARACH, Circuit Judges.
_________________________________
Ms. Luz del Carmen Morones-Quinones was ordered removed. She
asked the Board of Immigration Appeals to reopen the removal proceedings
sua sponte so that she could request adjustment of status. 1 The Board
*
The parties have not requested oral argument, and we do not believe
oral argument would be helpful. As a result, we are deciding the appeal on
the briefs. See Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1(G).
This order and judgment does not constitute binding precedent except
under the doctrines of law of the case, res judicata, and collateral estoppel.
But the order and judgment may be cited for its persuasive value under
Fed. R. App. P. 32.1(a) and 10th Cir. R. 32.1(A).
1
Ms. Morones-Quinones asked for relief sua sponte because she had
missed the 90-day deadline for filing a motion to reopen. See 8 U.S.C.
§ 1229a(c)(7)(C). After the 90-day deadline expired, “the only avenue of
declined to reopen the removal proceedings. Rather than file a petition for
review, she moved for reconsideration. This motion was denied, prompting
Ms. Morones-Quinones to file a petition for review of the denial of
reconsideration and to seek leave to proceed in forma pauperis. We dismiss
the petition, but grant leave to proceed in forma pauperis.
Petition for Review. We generally have jurisdiction to consider a
motion to reconsider. See Mata v. Lynch, ___ U.S. ___, 135 S. Ct. 2150,
2154 (2015). In the motion, however, Ms. Morones-Quinones relies on an
alleged error by the Board in declining to sua sponte reopen the removal
proceedings. 2 We lack jurisdiction to entertain that argument. Accordingly,
we dismiss the petition for review.
Ms. Morones-Quinones acknowledges that we have held in
precedential opinions that we lack jurisdiction to consider whether the
Board erred in declining to reopen the proceedings sua sponte. See
Infanzon v. Ashcroft, 386 F.3d 1359, 1361 (10th Cir. 2004); Belay-Gebru v.
INS, 327 F.3d 998, 1001 (10th Cir. 2003). But Ms. Morones-Quinones
argues that the Supreme Court overruled these precedents in Kucana v.
Holder, 558 U.S. 233 (2010). We disagree.
relief is for the [Board of Immigration Appeals] to reopen proceedings sua
sponte.” Gor v. Holder, 607 F.3d 180, 198 (6th Cir. 2010); see also
8 C.F.R. § 1003.2(a) (stating that the Board of Immigration Appeals can
reopen a case on its own at any time).
2
In the motion, she also relies on a change in the law after the denial
of her motion to reopen. But she does not raise this argument in our court.
2
Kucana addressed 8 U.S.C. § 1252(a)(2)(B), which precludes judicial
review of discretionary denials of relief. The Kucana Court held that
§ 1252(a)(2)(B) does not deprive the courts of jurisdiction to review the
Board’s decisions on motions to reopen because those decisions are
discretionary by regulation, not statute. 558 U.S. at 237, 253. But in
Kucana, the Supreme Court noted that its issue did not involve sua sponte
reopening. Id. at 251 n.18. On that issue, the Court stated that it
“express[ed] no opinion on whether federal courts may review the Board’s
decision not to reopen removal proceedings sua sponte.” Id.; see also Mata
v. Lynch, ___ U.S. ___, 135 S. Ct. 2150, 2155 (2015) (noting that the
question was reserved in Kucana and assuming arguendo that the court of
appeals had correctly held that it lacked authority to review the Board’s
refusal to reopen sua sponte).
Because the Kucana Court expressed no opinion on our issue,
we are bound by our precedents, which hold that we lack jurisdiction
to consider whether the Board erred when declining to reopen
removal proceedings sua sponte. See In re Smith, 10 F.3d 723, 724
(10th Cir. 1993) (per curiam) (“We are bound by the precedent of
prior panels absent en banc reconsideration or a superseding contrary
decision by the Supreme Court.”). Under these precedents, we lack
jurisdiction to consider whether the Board should have sua sponte
reopened Ms. Morones-Quinones’ removal proceedings. See Infanzon
3
v. Ashcroft, 386 F.3d 1359, 1361 (10th Cir. 2004); Belay-Gebru v.
INS, 327 F.3d 998, 1001 (10th Cir. 2003). Thus, we dismiss the
petition for review.
Motion for Leave to Proceed in Forma Pauperis. Because
Ms. Morones-Quinones cannot afford to prepay the filing fee, we grant her
motion for leave to proceed in forma pauperis. With this status, Ms.
Morones-Quinones is relieved of her obligation to prepay the filing fee.
See 28 U.S.C. § 1915(a)(1). But she remains obligated to pay the filing fee.
Brown v. Eppler, 725 F.3d 1221, 1230-31 (10th Cir. 2013).
Entered for the Court
Robert E. Bacharach
Circuit Judge
4