Roche v. Garland ( 2022 )

20-1537
Roche v. Garland
BIA
A091 479 159
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 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 25th day of October, two thousand twenty-
5 two.
6
7 PRESENT: DEBRA ANN LIVINGSTON,
8 Chief Judge,
9 WILLIAM J. NARDINI,
10 EUNICE C. LEE,
11 Circuit Judges.
12 _____________________________________
13
14 GUETARY ROCHE, AKA GUETHARI
15 ROACH, AKA EUETARY ROCHE, AKA
16 GUITERO ROACH, AKA GUIDO ROCHE,
17 AKA GUDO ROK, AKA GUY ROACH,
18 Petitioner,
19
20 v. 20-1537
21 NAC
22 MERRICK B. GARLAND, UNITED
23 STATES ATTORNEY GENERAL,
24 Respondent.
25 _____________________________________
26
27 FOR PETITIONER: Thomas E. Moseley, Esq., Newark,
28 NJ.
1 FOR RESPONDENT: Brian M. Boynton, Acting Assistant
2 Attorney General; Mary Jane
3 Candaux, Assistant Director;
4 Stephen Finn, Trial Attorney,
5 Office of Immigration Litigation,
6 United States Department of
7 Justice, Washington, DC.
8 UPON DUE CONSIDERATION of this petition for review of a
9 Board of Immigration Appeals (“BIA”) decision, it is hereby
10 ORDERED, ADJUDGED, AND DECREED that the petition for review
11 is DISMISSED.
12 Petitioner Guetary Roche, a native and citizen of Haiti,
13 seeks review of an April 13, 2020 decision of the BIA denying
14 his third motion to reopen. In re Guetary Roche, No. A 091
15 479 159 (B.I.A. Apr. 13, 2020). We assume the parties’
16 familiarity with the underlying facts and procedural history.
17 In 1997, the BIA affirmed an immigration judge’s decision
18 ordering Roche deported for overstaying a visa and for an
19 aggravated felony based on a 1994 New York conviction for
20 first-degree assault. The agency found Roche ineligible to
21 apply to adjust status given a 1990 Florida conviction for
22 cocaine possession. Roche filed his third motion to reopen
23 in 2020 based on a Florida court’s 2018 vacatur of the
24 possession conviction. We dismiss his petition for lack of
25 jurisdiction.
2
1 As an initial matter, because Roche was ordered removed
2 for an aggravated felony, our review is limited to
3 constitutional claims and questions of law. See
4 8 U.S.C. § 1252(a)(2)(C), (D); Durant v. I.N.S., 393 F.3d
5 113, 115 (2d Cir. 2004). We review such claims de novo.
6 Pierre v. Holder, 588 F.3d 767, 772 (2d Cir. 2009). Our
7 review is further limited because Roche petitions for review
8 of the BIA’s discretionary decision not to reopen sua sponte.
9 An alien may file one motion to reopen no later than 90
10 days after the final administrative decision is
11 rendered. 8 U.S.C. § 1229a(c)(7)(A), (C)(i); 8 C.F.R.
12 § 1003.2(c)(2). There is no dispute that Roche’s 2020 motion
13 was untimely and number-barred because he filed approximately
14 24 years after his 1997 deportation order and it was his third
15 motion to reopen. While there are exceptions to these
16 limitations, see 8 U.S.C. § 1229a(c)(7)(C)(ii)–(iv) (listing
17 exceptions); 8 C.F.R. § 1003.2(c)(3) (same), Roche does not
18 argue that any apply and he sought to reopen to pursue a
19 waiver of inadmissibility and adjustment of status, which are
20 not among those exceptions, see Matter of Yauri, 25 I. & N.
21 Dec. 103, 105 (B.I.A. 2009) (“emphasiz[ing] that untimely
3
1 motions to reopen to pursue an application for adjustment of
2 status . . . do not fall within any of the statutory or
3 regulatory exceptions to the time limits for motions to reopen
4 before the Board and will ordinarily be denied”). 1 Roche
5 argues that the agency should have excused the time and number
6 limitations because he “filed his motion to reopen as soon as
7 [he] could obtain counsel.” However, we do not consider this
8 equitable tolling argument becasue he did not present it to
9 the BIA. See Lin Zhong v. U.S. Dep’t of Just., 480 F.3d 104,
10 107 n.1, 118–24 (2d Cir. 2007).
11 Thus, Roche’s motion necessarily relied on the BIA’s
12 authority to reopen his proceedings sua sponte. See Mahmood
13 v. Holder, 570 F.3d 466, 469 (2d Cir. 2009) (“Because
14 Mahmood’s untimely motion to reopen was not excused by any
15 regulatory exception, his motion to reopen could only be
16 considered upon exercise of the Agency’s sua sponte
17 authority.”); see also 8 C.F.R. § 1003.2(a) (version in
18 effect until Jan. 15, 2021). The BIA “invoke[s] [its] sua
19 sponte authority sparingly, treating it . . . as an
1 Roche’s motion to reopen also requested termination of his
removal proceedings, but the vacated cocaine conviction was not
the basis of his deportation order.
4
1 extraordinary remedy reserved for truly exceptional
2 situations.” In re G-D-, 22 I. & N. Dec. 1132, 1133–34
3 (B.I.A. 1999); see In re J-J-, 21 I. & N. Dec. 976, 984
4 (B.I.A. 1997) (“The power to reopen on our own motion is not
5 meant to be used as a general cure for filing defects or to
6 otherwise circumvent the regulations, where enforcing them
7 might result in hardship.”). We do not have jurisdiction to
8 review a BIA decision declining to reopen sua sponte because
9 that authority is “entirely discretionary.” Ali v. Gonzales,
10 448 F.3d 515, 518 (2d Cir. 2006). There is one exception:
11 “where the [BIA] may have declined to exercise its sua sponte
12 authority because it misperceived the legal background and
13 thought, incorrectly, that a reopening would necessarily
14 fail, remand to the [BIA] for reconsideration in view of the
15 correct law is appropriate.” Mahmood, 570 F.3d at 469.
16 That is not the case here. The BIA did not address
17 Roche’s eligibility to pursue a waiver of inadmissibility or
18 adjust his status, but simply found he had not shown an
19 exceptional situation warranting discretionary reopening.
20 See In re J-J-, 21 I. & N. Dec. at 984. Roche argues that
21 the BIA misperceived the legal background and deviated from
5
1 its settled practice in determining that his conviction
2 remained valid for immigration purposes. While he is correct
3 that a Florida court vacated his cocaine possession
4 conviction, he is mistaken that this vacatur invalidated the
5 conviction for immigration purposes. 2 Roche contends that
6 the Florida prosecutor’s observation that the state agreed to
7 vacate the conviction after an “equitable review” and that
8 vacatur was in the “interests of justice” renders the
9 conviction invalid for immigration purposes because Saleh v.
10 Gonzales, states that a conviction is vacated on the merits
11 if there is “any suggestion that the conviction ha[s] been
12 improperly obtained.” 495 F.3d 17, 25 n.8 (2d Cir.
13 2007)(emphasis added).
14 There is no suggestion that the Florida court vacated
15 Roche’s conviction because it was improperly obtained. Roche
16 alleged in his motion to reopen that the Florida court vacated
17 the cocaine possession conviction as “deficient in the
18 required due process rights” because he “was not advised on
19 the possible immigration impact at the time” he pled guilty.
2 The issue of whether Roche’s vacated conviction remains valid
for immigration purposes presents a question of law over which we
have jurisdiction. See Sutherland v. Holder, 769 F.3d 144, 146
(2d Cir. 2014).
6
1 Cert. Admin. Record at 27. This allegation in the motion is
2 not itself evidence, see Pretzantzin v. Holder, 736 F.3d 641,
3 651 (2d Cir. 2013) (noting that “the arguments of counsel are
4 not evidence”), and Roche’s other evidence did not establish
5 that the conviction was vacated for that reason. During a
6 hearing on the joint motion to vacate, the prosecutor informed
7 the state court that an “equitable review process” had been
8 conducted and the parties agreed that the cocaine possession
9 charge should be vacated “in the interest of justice.” Cert.
10 Admin. Record at 35. The hearing transcript contains no
11 mention of substantive or procedural error in the conviction.
12 Roche did not provide evidence, such as a motion or written
13 request, to establish why the prosecutor reviewed the
14 conviction.
15 Moreover, Roche’s 1990 cocaine possession conviction
16 became final before Padilla v. Kentucky, 559 U.S. 356, 374–
17 75 (2010), which held that criminal defense counsel is
18 required to inform a defendant of the immigration
19 consequences of a conviction, and Padilla does not apply
20 retroactively. See Chaidez v. United States, 568 U.S. 342,
21 358 (2013). Accordingly, the cocaine possession conviction
7
1 remained valid for immigration purposes and the BIA did not
2 “misperceive[] the legal background” in declining to reopen
3 sua sponte. Mahmood, 570 F.3d at 469.
4 For the foregoing reasons, the petition for review is
5 DISMISSED. All pending motions and applications are DENIED
6 and stays VACATED.
7 FOR THE COURT:
8 Catherine O’Hagan Wolfe,
9 Clerk of Court
8