Robert Watson v. Eric Holder, Jr. , 540 F. App'x 336 ( 2013 )

Case: 13-60011 Document: 00512379567 Page: 1 Date Filed: 09/19/2013
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT United States Court of Appeals
Fifth Circuit
FILED
September 19, 2013
No. 13-60011
Summary Calendar Lyle W. Cayce
Clerk
ROBERT RANDALL WATSON,
Petitioner
v.
ERIC H. HOLDER, JR., U.S. ATTORNEY GENERAL,
Respondent
Petition for Review of an Order of the
Board of Immigration Appeals
BIA No. A028 319 026
Before JOLLY, SMITH, AND CLEMENT, Circuit Judges.
PER CURIAM:*
Robert Randall Watson petitions for review of a Board of Immigration
Appeals’ (BIA) order that denied his motion to reconsider a motion to reopen
based upon eligibility for adjustment of status. Watson asserts that his motion
to reopen based on his eligibility for adjustment of status was not untimely since
the time and numerical limitations do not apply to his proceedings, which were
commenced prior to June 13, 1992 under former Immigration and Nationality
Act § 242(b), 8 U.S.C. § 1252(b). He asserts that the BIA’s invocation of its sua
*
Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR.
R. 47.5.4.
Case: 13-60011 Document: 00512379567 Page: 2 Date Filed: 09/19/2013
No. 13-60011
sponte authority and subsequent denial of his motion to reconsider contradicts
this courts’s holding in Rodriguez-Manzano v. Holder, 666 F.3d 948 (5th Cir.
2012). In accordance with Avilez-Granados v. Gonzales, 481 F.3d 869 (5th Cir.
2007), Watson contends that his case should be remanded to the BIA for an
adjudication of his application for adjustment of status since he has never had
the opportunity to have it considered.
The decision to deny a motion for reconsideration is within the discretion
of the BIA. 8 C.F.R. § 1003.2(a). The motion for reconsideration must identify
a legal or factual error in the BIA’s prior decision and must be supported by
relevant authority. § 1003.2(b)(1). We review the BIA’s denial of a motion for
reconsideration under a highly deferential abuse-of-discretion standard. See
Lara v. Trominski, 216 F.3d 487, 496-97 (5th Cir. 2000).
Watson did not file his motion to reopen seeking adjustment of status until
November 20, 2002. This motion did not seek reopening to vacate his in absentia
deportation order. Thus, as the immigration judge and the BIA found, his
motion was untimely. See Matter of M-S-, 22 I. & N. Dec. 349, 356-57 (1998); 8
C.F.R. § 1003.2(c); § 1003.23(b)(1); see also Jeon v. Holder, 354 F. App’x 50, 53-54
(5th Cir. 2009). Therefore, the only way the BIA could have reopened his
proceedings was via its sua sponte authority. See Ramos-Bonilla v. Mukasey,
543 F.3d 216, 219-20 (5th Cir. 2008); Rodriguez-Manzano, 666 F.3d at 952 & n.3.
To the extent Watson seeks review of the BIA’s decision not to invoke its sua
sponte authority, this court lacks jurisdiction. See Ramos-Bonilla, 543 F.3d at
220.
The BIA did not abuse its discretion in denying Watson’s motion for
reconsideration. See Lara, 216 F.3d at 496-97. Accordingly, his petition for
review is DENIED.
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