Cerrato-Marquez v. Holder, Jr.

Filing

OPINION issued by Sandra L. Lynch, Chief Appellate Judge; David H. Souter, Associate Supreme Court Justice and Kermit V. Lipez, Appellate Judge. Unpublished. [13-1458]

Case: 13-1458

Document: 00116712407

Page: 1

Date Filed: 07/11/2014

Entry ID: 5837610

Not for Publication in West's Federal Reporter

United States Court of Appeals
For the First Circuit
No. 13-1458
JAVIER ANTONIO CERRATO-MARQUEZ,
Petitioner,
v.
ERIC H. HOLDER, JR.,
Attorney General of the United States,
Respondent.

PETITION FOR REVIEW OF AN ORDER OF THE
BOARD OF IMMIGRATION APPEALS

Before
Lynch, Chief Judge,
Souter,* Associate Justice,
and Lipez, Circuit Judge.

John H. Ruginski, Jr. on brief for petitioner.
Colin J. Tucker, Office of Immigration Litigation, Civil
Division, Department of Justice, Stuart F. Delery, Assistant
Attorney General, Civil Division, and Terri J. Scadron, Assistant
Director, Office of Immigration Litigation, on brief for
respondent.

July 11, 2014

*

Hon. David H. Souter, Associate Justice (Ret.) of the Supreme
Court of the United States, sitting by designation.

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SOUTER, Associate Justice.
Cerrato-Marquez

seeks

review

of

Entry ID: 5837610

Petitioner Javier Antonio

an

order

of

the

Board

of

Immigration Appeals (BIA) denying his untimely motion to reopen
removal proceedings and to reconsider dismissal of his appeal of an
immigration judge's decision ordering him removed.

We dismiss the

petition for lack of jurisdiction.
I.
Cerrato-Marquez,

a

native

and

citizen

of

Honduras,

unlawfully entered the United States in 1991 and has remained here
since then.

At a hearing before an immigration judge, he admitted

that after his arrival in the United States he had twice been
convicted of possession with intent to distribute cocaine.
In 2008, Cerrato-Marquez was charged with and conceded
removability as both "[a]n alien present in the United States
without being admitted or paroled," 8 U.S.C. §1182(a)(6)(A)(i), and
an

alien

who

"is

or

has

been

an

illicit

controlled substance," id. §1182(a)(2)(C).

trafficker

in

[a]

He nevertheless sought

to forestall deportation by filing an application for withholding
of removal and for relief under the Convention Against Torture. He
claimed

that,

upon

his

return

to

Honduras,

he

would

face

persecution and torture as someone who had lived in the United
States for a long time, and thus be subject to a misperception that
he was wealthy, making him a target for kidnapping and other
criminal

victimization.

The

immigration

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judge

denied

relief

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because

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Cerrato-Marquez had not shown a likelihood either of

persecution as a member of a "particular social group" or of
torture.

The BIA agreed in full with the immigration judge's

analysis and dismissed Cerrato-Marquez's appeal, by an order dated
March 5, 2012.
On December 27, 2012, nearly 300 days later, CerratoMarquez moved to reopen the removal proceedings because, he argued,
the Government had fallen short of establishing removability, by
failing

to

provide

records

of

his

convictions

for

cocaine

distribution. The BIA denied the motion as untimely, construing it
as one both to reopen removal proceedings and to reconsider its
decision dismissing his appeal. The BIA further held that CerratoMarquez had not described the sort of "exceptional situation" that
might warrant its exercise of discretionary jurisdiction to reopen
proceedings or reconsider a prior decision sua sponte, because his
motion contained no information or argument that could not have
been

presented

in

his

first

appeal

to

the

Board.

In

the

alternative, the BIA ruled that the Government had no obligation to
produce a record of conviction, given Cerrato-Marquez's concession
of

removability

and

express

acknowledgment

distribution convictions.
This petition for review followed.

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of

his

cocaine

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II.
Save for exceptions not to the point here, an alien's
statutory right to move to reopen removal proceedings expires "90
days [after] the date of entry of a final administrative order of
removal."

8 U.S.C. §1229a(c)(7)(A).

A motion to reconsider a BIA

order must, without statutory exception, be filed even sooner,
within 30 days of a final order of removal.

Id. §1229a(c)(6)(B).

The failure to file a timely motion to reopen or reconsider,
however, "does not automatically sound the death knell for an
alien's attempt to reopen his removal proceedings."
v. Holder, 660 F.3d 91, 94 (1st Cir. 2011).

Matos-Santana

The BIA's regulations

provide that it "may at any time reopen or reconsider on its own
motion any case in which it has rendered a decision" and further
permit "the party affected by the decision" to file written
requests for the Board to exercise this sua sponte authority.
C.F.R. §1003.2(a).

8

Whether to take any of these actions, however,

"is committed [by regulation] to the unbridled discretion of the
[BIA]."

Matos-Santana,

660

F.3d

at

94;

see

also

8

C.F.R.

§1003.2(a) ("The decision to grant or deny a[n untimely] motion to
reopen or reconsider is within the discretion of the [BIA] . . . .
The [BIA] has discretion to deny a motion to reopen even if the
party moving has made out a prima facie case for relief.").

Given

the absence of any articulable standard against which we could
evaluate such a discretionary determination by the BIA, we have

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held that "the courts lack jurisdiction to review" the BIA's
exercise of its sua sponte authority.

Matos-Santana, 660 F.3d at

94.
Here, there is no dispute that Cerrato-Marquez did not
file his motion within the statutory limits set forth in 8 U.S.C.
§1229a(c), with the consequence that the only issue could be the
BIA's abuse of discretion in acting under §1003.2(a), which we have
no jurisdiction to examine.

The petition for review is DISMISSED.

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