Charuc v. Holder, Jr.
2013 U.S. App. LEXIS 24295
| 1st Cir. | 2013Background
- Charuc, a Guatemalan national, entered the U.S. without inspection in 2001.
- In 2007, Charuc was arrested for DUI and driving without a license, triggering DHS removal proceedings.
- An IJ found Charuc incredible and denied withholding, CAT protection, and voluntary departure relief after a June 2009 hearing.
- The BIA dismissed Charuc's appeal on April 27, 2011; he timely filed a motion to reconsider the dismissal, which the BIA denied on December 2, 2011.
- Charuc moved to reopen on August 24, 2012 to pursue pre-hearing voluntary departure under 8 U.S.C. § 1229c(a)(1), invoking sua sponte authority; the BIA denied on December 27, 2012.
- Charuc filed a timely motion to reconsider the 2012 denial, which the BIA refused on March 25, 2013; he petitioned for judicial review.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether the court has jurisdiction to review the BIA's denial of sua sponte reopening | Charuc argues for judicial review of BIA's denial. | Charuc contends the court has jurisdiction over the denial as part of the petition for review. | No jurisdiction to review the denial of sua sponte reopening. |
| Whether reviewing the denial of a motion to reconsider is jurisdictionally proper | Charuc seeks review of the BIA's denial of reconsideration. | Governing law limits review to the underlying disposition, not the reconsideration denial when jurisdiction is lacking. | Jurisdiction not proper to review reconsideration denial when underlying review is unavailable. |
| Whether the 90-day deadline to file a motion to reopen can be equitably tolled | Equitable tolling due to IJ's failure to inform about pre-hearing voluntary departure tolled the period. | Tolling claim lacks continuing applicability; tolling could not establish jurisdiction here. | Equitable tolling claim rejected; tolling could not alter jurisdiction. |
Key Cases Cited
- Matos-Santana v. Holder, 660 F.3d 91 (1st Cir. 2011) (discretionary nature of sua sponte reopening; no judicial review)
- Neves v. Holder, 613 F.3d 30 (1st Cir. 2010) (courts lack jurisdiction to review BIA’s discretionary actions)
- Mehilli v. Gonzales, 433 F.3d 86 (1st Cir. 2005) (reconsideration cannot circumvent lack of jurisdiction)
- Bolieiro v. Holder, 731 F.3d 32 (1st Cir. 2013) (equitable tolling in context of immigration deadlines unresolved)
- Rangel-Perez v. U.S. Att'y Gen., 523 F. App'x 671 (11th Cir. 2013) (jurisdictional limits on review of discretionary relief)
- Cruz-Mayaho v. Holder, 698 F.3d 574 (7th Cir. 2012) (limitations on review of discretionary agency actions)
- Jean v. Gonzales, 435 F.3d 475 (4th Cir. 2006) (limits on reviewing agency's discretionary decisions)
- Durant v. INS, 393 F.3d 113 (2d Cir. 2004) (review standards for immigration relief decisions)
- Belay-Gebru v. INS, 327 F.3d 998 (10th Cir. 2003) (scope of review for immigration decisions)
- Averianova v. Holder, 592 F.3d 931 (8th Cir. 2010) (limits on review of asylum and related decisions)