Arrue v. Rosen ( 2021 )

19-821
Arrue v. Rosen
BIA
A205 309 541
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 TO 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 4th day of January, two thousand twenty-
5 one.
6
7 PRESENT:
8 JOSÉ A. CABRANES,
9 ROBERT D. SACK,
10 DENNY CHIN,
11 Circuit Judges.
12 _____________________________________
13
14 PABLO RAFAEL ARRUE,
15 Petitioner,
16
17 v. 19-821
18 NAC
19 JEFFREY A. ROSEN, ACTING UNITED
20 STATES ATTORNEY GENERAL,
21 Respondent.
22 _____________________________________
23
24 FOR PETITIONER: Diana L. Castaneda, New York, NY.
25
26 FOR RESPONDENT: Jeffrey Bossert Clark, Acting
27 Assistant Attorney General; Mary
28 Jane Candaux, Assistant Director;
29 Nicole J. Thomas-Dorris, Trial
30 Attorney, Office of Immigration
31 Litigation, United States
32 Department of Justice, Washington,
33 DC.
1 UPON DUE CONSIDERATION of this petition for review of a
2 Board of Immigration Appeals (“BIA”) decision, it is hereby
3 ORDERED, ADJUDGED, AND DECREED that the petition for review
4 is DISMISSED.
5 Petitioner Pablo Rafael Arrue, a native and citizen of
6 Argentina, seeks review of a March 4, 2019, order of the BIA
7 denying his motion to reopen and reissue. In re Pablo Rafael
8 Arrue, No. A205 309 541 (B.I.A. Mar. 4, 2019). We assume the
9 parties’ familiarity with the underlying facts and procedural
10 history.
11 Because Arrue timely petitions for review of the BIA’s
12 denial of his motion to reissue, but not from the underlying
13 decision denying cancellation of removal, we may review only
14 the denial of his motion. See Ke Zhen Zhao v. U.S. Dep’t of
15 Justice, 265 F.3d 83, 89–90 (2d Cir. 2001). We apply the
16 standards for a motion to reopen and review the denial of a
17 motion to reissue for abuse of discretion. See Ping Chen v.
18 U.S. Att’y Gen., 502 F.3d 73, 75 (2d Cir. 2007).
19 It is undisputed that Arrue’s 2018 motion to reopen and
20 reissue was untimely because he filed it more than one year
21 after his 2017 order of removal. See 8 U.S.C.
2
1 § 1229a(c)(7)(C)(i) (providing 90-day deadline for motions to
2 reopen); 8 C.F.R. § 1003.2(c)(2) (same); see also Ping Chen,
3 502 F.3d at 75. Arrue did not invoke any statutory or
4 regulatory exceptions to the time limitation. See 8 U.S.C.
5 § 1229a(c)(7)(C)(ii); 8 C.F.R. § 1003.2(c)(3).
6 Although the BIA may exercise its authority to reopen at
7 any time despite the time limitation, see 8 C.F.R.
8 § 1003.2(a), it “invoke[s] [its] sua sponte authority
9 sparingly, treating it . . . as an extraordinary remedy
10 reserved for truly exceptional situations.” In re G-D-, 22
11 I. & N. Dec. 1132, 1133-34 (BIA 1999); see In re J-J-, 21 I.
12 & N. Dec. 976, 984 (BIA 1997) (“The power to reopen on our
13 own motion is not meant to be used as a general cure for
14 filing defects or to otherwise circumvent the regulations,
15 where enforcing them might result in hardship.”). We lack
16 jurisdiction to review the agency’s “entirely discretionary”
17 decision declining to reopen proceedings sua sponte. Ali v.
18 Gonzales, 448 F.3d 515, 518 (2d Cir. 2006).
19 Although we may remand if the BIA “may have declined to
20 exercise its sua sponte authority because it misperceived the
21 legal background and thought, incorrectly, that a reopening
3
1 would necessarily fail, remand to the Agency for
2 reconsideration in view of the correct law is appropriate,”
3 Mahmood v. Holder, 570 F.3d 466, 469 (2d Cir. 2009), the BIA
4 did not misperceive the law. Rather, it decided in line with
5 its precedent that its sua sponte authority is invoked
6 “sparingly” and is not used, as Arrue sought, “as a general
7 remedy for any hardships created by enforcement of the time
8 . . . limits.” In re G-D-, 22 I. & N. Dec. at 1133–34.
9 Contrary to Arrue’s suggestion, he does not have a
10 colorable due process claim because he has not established
11 the requisite prejudice. See Garcia-Villeda v. Mukasey, 531
12 F.3d 141, 149 (2d Cir. 2008) (“Parties claiming denial of due
13 process in immigration cases must, in order to prevail, allege
14 some cognizable prejudice fairly attributable to the
15 challenged process.”). Our jurisdiction to review the
16 agency’s underlying decision denying cancellation of removal
17 for failure to establish the requisite hardship to a
18 qualifying relative is limited to colorable constitutional
19 claims and questions of law, 8 U.S.C. § 1252(a)(2)(B), (D);
20 Barco-Sandoval v. Gonzales, 516 F.3d 35, 39–41 (2d Cir. 2008),
21 and Arrue did not testify to hardship “substantially beyond
4
1 the ordinary hardship that would be expected when a close
2 family member leaves this country,” In re Monreal-Aguinaga,
3 23 I. & N. Dec. 56, 62 (BIA 2001).
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
5