Reyes v. Sessions, 886 F.3d 184

Background

Julio H. Reyes, El Salvador native, entered U.S. unlawfully (1987) and accumulated a lengthy criminal history with at least two convictions (1993 assault and battery; 1997 receiving a stolen vehicle).
DHS initiated removal proceedings in 2007; Reyes applied for NACARA special rule cancellation of removal but IJ denied relief based on (1) a 1997 conviction making the higher "exceptional and extremely unusual" hardship standard applicable, (2) lack of good moral character, and (3) an adverse discretionary determination tied to his many arrests. BIA affirmed in 2012.
Reyes did not move to reopen within the 90-day statutory window following the final BIA order. He remained in the U.S. and later obtained state-court vacaturs of his 1993 and 1997 convictions (January and July 2017).
Reyes filed a motion to reopen (Feb. 23, 2017) within 90 days of the vacaturs but more than four years after the final order; he argued vacaturs changed eligibility for NACARA relief.
BIA denied the motion as untimely and found Reyes failed to show an exception; it also declined to reopen sua sponte because vacaturs would not have overcome the independent discretionary denial based on his long arrest history.
First Circuit: denied review of the untimeliness ruling (no abuse of discretion) and dismissed for lack of jurisdiction Reyes’s challenge to the BIA’s refusal to reopen sua sponte.

Issues

Issue	Plaintiff's Argument	Defendant's Argument	Held
Whether BIA abused discretion by denying Reyes’s motion to reopen as untimely	Reyes: motion timely because filed within 90 days of convictions being vacated; vacaturs are changed/exceptional circumstances	Govt: motion filed >90 days after final order; Reyes never justified the delay before BIA; vacaturs do not excuse untimeliness	Denied—BIA did not abuse its discretion in finding motion untimely and rejecting excuse for delay
Whether vacatur of convictions excused late filing under exception to 90‑day rule	Reyes: vacaturs are changed and exceptional circumstances triggering tolling	Govt: Reyes failed to raise or justify this before BIA; long unexplained delay in seeking vacatur	Waived below; even if considered, insufficient explanation for multi‑year delay; BIA’s timeliness ruling stands
Whether BIA’s refusal to reopen sua sponte is judicially reviewable	Reyes: §1252(a)(2)(D) permits review because constitutional and legal questions are raised	Govt: BIA’s sua sponte authority is unreviewable discretion; Reyes’s claims are not colorable	Dismissed for lack of jurisdiction—BIA’s decision not to reopen sua sponte is unreviewable here; Reyes’s constitutional/legal claims are not colorable
Whether denial of sua sponte reopening violated due process or law	Reyes: denial deprived him of due process and departed from precedent where BIA reopened after vacatur	Govt: No cognizable liberty interest in BIA’s discretionary sua sponte power; facts differ from precedent because an independent discretionary denial existed	Rejected—no due process violation (no protected liberty interest); BIA’s decision consistent with precedent because independent discretionary ground remained

Key Cases Cited

Sánchez‑Romero v. Sessions, 865 F.3d 43 (1st Cir. 2017) (standard of review: BIA denial of motion to reopen reviewed for abuse of discretion)
Charuc v. Holder, 737 F.3d 113 (1st Cir. 2013) (BIA sua sponte reopening is committed to unbridled discretion and generally unreviewable)
Matos‑Santana v. Holder, 660 F.3d 91 (1st Cir. 2011) (same principle on reviewability of sua sponte decisions)
Matias v. Sessions, 871 F.3d 65 (1st Cir. 2017) (discusses whether §1252(a)(2)(D) can supply jurisdiction over BIA sua sponte decisions)
Ayeni v. Holder, 617 F.3d 67 (1st Cir. 2010) (colorability requirement for jurisdiction under §1252(a)(2)(D))
Mejia‑Orellana v. Gonzales, 502 F.3d 13 (1st Cir. 2007) (liberty‑interest requirement for due process challenges in immigration context)
Molina De Massenet v. Gonzales, 485 F.3d 661 (1st Cir. 2007) (exhaustion/waiver of arguments not presented to the BIA)