766 F.3d 122
1st Cir.2014Background
- Guerrero, a Dominican national and lawful permanent resident since 1986, was served with an Order to Show Cause in 1995 after a 1991 New York controlled-substance conviction and conceded deportability.
- He sought relief under former INA § 212(c); the IJ denied relief in 1997 relying on AEDPA, but the BIA in 2000 remanded because proceedings began before AEDPA's cutoff date.
- While appeal was pending, INS added a 2000 Rhode Island conviction as an aggravated-felony ground; IJ and then the BIA (2002) found it precluded § 212(c) relief and ordered removal; Guerrero was removed in 2002.
- Guerrero reentered without inspection in 2006 and filed an untimely motion to reopen in 2007, submitting a Rhode Island order vacating the conviction; the BIA initially denied reopening for lack of clarity about the vacatur.
- Guerrero filed an untimely motion to reconsider in 2008; the BIA sua sponte reopened the case in June 2008 based on the probative nature of the vacatur evidence, but later learned Guerrero had been previously removed and reentered.
- After INS moved to vacate the sua sponte reopening, the BIA in December 2012 rescinded its June 2008 sua sponte reopening, reinstated the 2002 removal order, and dismissed Guerrero’s appeal.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether the court may review the BIA's decision to vacate its own sua sponte reopening | Guerrero argued BIA erred in rescinding sua sponte reopening and sought judicial review of that rescission | Government argued BIA's exercise (or rescission) of sua sponte authority is discretionary and not reviewable | Court dismissed for lack of jurisdiction because decisions to grant or deny sua sponte reopening are committed to BIA's unreviewable discretion |
| Whether constitutional or legal questions permit review under 8 U.S.C. § 1252(a)(2)(D) | Guerrero did not press constitutional/law claims invoking § 1252(a)(2)(D) | Government contended that § 1252(a)(2)(D) does not open review here | Court noted § 1252(a)(2)(D) was not argued by Guerrero and did not address it further |
| Whether BIA acted improperly in reopening in 2008 despite procedural defects in Guerrero's filings | Guerrero relied on probative vacatur evidence to justify reopening | INS noted Guerrero had been removed and reentered and challenged jurisdiction and reopening | Court recognized the BIA had discretion both to reopen and later to reconsider and vacate that sua sponte reopening |
| Whether IJ erred in applying the departure/ jurisdiction bar after reopen | Guerrero argued he was eligible for relief once conviction vacated | INS argued departure bar and loss of LPR status barred relief | Court treated IJ issues as moot because BIA’s discretionary rescission of reopening is unreviewable |
Key Cases Cited
- Peralta v. Holder, 567 F.3d 31 (1st Cir. 2009) (BIA refusal to reopen sua sponte is not reviewable)
- Córdoba-Quiroz v. Gonzáles, [citation="233 F. App'x 5"] (1st Cir. 2007) (no standards govern BIA sua sponte reopening)
- Luis v. I.N.S., 196 F.3d 36 (1st Cir. 1999) (BIA sua sponte power lacks judicially manageable standards)
- Cerrato-Marquez v. Holder, [citation="563 F. App'x 1"] (1st Cir. 2014) (BIA discretion to reopen or deny reopening)
- Matos-Santana v. Holder, 660 F.3d 91 (1st Cir. 2011) (BIA may reopen a case at any time on its own initiative)
- Charuc v. Holder, 737 F.3d 113 (1st Cir. 2013) (denial of motion to reconsider of sua sponte relief is likewise unreviewable)