Villareal v. Garland ( 2023 )

21-6534
Villareal v. Garland
BIA
A094 477 403
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.
At a stated term of the United States Court of Appeals for the Second
Circuit, held at the Thurgood Marshall United States Courthouse, 40 Foley
Square, in the City of New York, on the 25th day of May, two thousand twenty-
three.
PRESENT:
JON O. NEWMAN,
GERARD E. LYNCH,
RICHARD J. SULLIVAN,
Circuit Judges.
_____________________________________
SELEDONIO VILLAREAL,
Petitioner,
v. 21-6534
NAC
MERRICK B. GARLAND, UNITED
STATES ATTORNEY GENERAL,
Respondent.
_____________________________________
FOR PETITIONER: Wade M. German, Esq., New York, NY.
FOR RESPONDENT: Brian Boynton, Principal Deputy Assistant
Attorney General; Anthony P. Nicastro,
Assistant Director; Sheri R. Glaser, Senior
Litigation Counsel, Office of Immigration
Litigation, United States Department of
Justice, Washington, DC.
UPON DUE CONSIDERATION of this petition for review of a Board of
Immigration Appeals (“BIA”) decision, it is hereby ORDERED, ADJUDGED, AND
DECREED that the petition for review is DISMISSED.
Petitioner Seledonio Villareal, a native and citizen of El Salvador, seeks
review of a September 2, 2021 decision of the BIA denying his motion to reopen.
In re Seledonio Villareal, No. A 094 477 403 (B.I.A. Sept. 2, 2021). We assume the
parties’ familiarity with the underlying facts and procedural history.
A motion to reopen ordinarily must be filed within 90 days of a final order
of removal. 8 U.S.C. § 1229a(c)(7)(C)(i); 8 C.F.R. § 1003.2(c)(2). It is undisputed
that Villareal’s January 2019 motion was untimely because the BIA affirmed his
removal order in May 2017. Nor does his alleged eligibility for a visa or to apply
to adjust to lawful permanent resident status implicate an exception to the
deadline. See 8 U.S.C. § 1229a(c)(7)(C)(ii)–(iv) (listing exceptions); 8 C.F.R.
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§ 1003.2(c)(3) (same); Matter of Yauri, 25 I. & N. Dec. 103, 105 (B.I.A. 2009)
(“[U]ntimely motions to reopen to pursue an application for adjustment of status,
even for cases that do not involve an arriving alien, do not fall within any of the
statutory or regulatory exceptions to the time limits for motions to reopen . . . and
will ordinarily be denied.” (internal quotation marks omitted)).
Absent an exception to the filing deadline, an untimely motion can “only be
considered upon exercise of the Agency’s sua sponte authority” to reopen pursuant
to 8 C.F.R. § 1003.2(a). Mahmood v. Holder, 570 F.3d 466, 469 (2d Cir. 2009). We
lack jurisdiction to review the BIA’s “entirely discretionary” decision not to
exercise its authority reopen a case sua sponte. Ali v. Gonzales, 448 F.3d 515, 518
(2d Cir. 2006).
There is one exception: “[W]here the Agency may have declined to
exercise its sua sponte authority because it misperceived the legal background and
thought, incorrectly, that a reopening would necessarily fail, remand to the
Agency for reconsideration in view of the correct law is appropriate.” Mahmood,
570 F.3d at 469. There is no such misperception here. The BIA gave multiple
reasons for concluding that Villareal had not established exceptional
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circumstances. Some of those are purely discretionary and do not implicate this
exception, i.e., that his criminal history weighed against reopening, that becoming
eligible for relief was not alone an exceptional circumstance, and that hardship to
his family did not warrant reopening. The BIA also found that Villareal was not
prima facie eligible to adjust status. This was not a misperception of the legal
background because (1) to adjust under 8 U.S.C. § 1255(a), an applicant must have
been “inspected and admitted or paroled into the United States,” and Villareal was
ordered removed for entering without inspection; (2) he did not have an approved
visa petition when he filed his motion to reopen as required to adjust status under
section 1255 or otherwise; and (3) the February 2022 visa approval referenced in
his brief post-dates the BIA’s decision. We have considered his remaining
arguments and find no basis for jurisdiction.
For the foregoing reasons, the petition for review is DISMISSED. All
pending motions and applications are DENIED and stays VACATED.
FOR THE COURT:
Catherine O’Hagan Wolfe,
Clerk of Court
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