Lemus, et al v. Sessions

Filing

OPINION issued by Juan R. Torruella, Appellate Judge; Sandra L. Lynch, Appellate Judge and David J. Barron, Appellate Judge. Published. [17-2068]

Case: 17-2068

Document: 00117326440

Page: 1

Date Filed: 08/14/2018

Entry ID: 6190795

United States Court of Appeals
For the First Circuit
No. 17-2068
LAURA LEMUS; MANUEL M. LEMUS,
Petitioners,
v.
JEFFERSON B. SESSIONS, III,
ATTORNEY GENERAL,
Respondent.

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

Before
Torruella, Lynch, and Barron,
Circuit Judges.

Jeffrey B. Rubin, Todd C. Pomerleau, and Rubin Pomerleau P.C.
on brief for petitioners.
Elizabeth K. Fitzgerald-Sambou, Trial Attorney, Office of
Immigration Litigation, Civil Division, U.S. Department of
Justice, Chad A. Readler, Acting Assistant Attorney General, Civil
Division, and Margaret Kuehne Taylor, Senior Litigation Counsel,
on brief for respondent.

August 14, 2018

Case: 17-2068

Document: 00117326440

Page: 2

LYNCH, Circuit Judge.

Date Filed: 08/14/2018

Entry ID: 6190795

Laura and Manuel Lemus, both

natives of Guatemala, were ordered removed by an immigration judge
(IJ) in 2000.

The Board of Immigration Appeals (BIA) denied their

appeal in 2001.

Since then, the Lemuses have filed seventeen

motions with the BIA to reopen or reconsider that removal order.
Their latest motion, filed on August 29, 2017 with the BIA, claimed
that there was new relief available to them and that "exceptional
circumstances"

should

lead

proceedings sua sponte.

the

BIA

to

reopen

their

removal

The BIA was unpersuaded, and said so in

a reasoned decision.
The Lemuses now petition for judicial review of the BIA's
denial of their motion.

We hold that the BIA did not abuse its

discretion in denying the Lemuses' time- and number-barred motion
to reopen.

The BIA also determined that sua sponte reopening was

unwarranted.

We dismiss the Lemuses' challenge to that decision

for lack of jurisdiction.
I.
The

Lemuses --

Laura,

Manuel,

and

their

three

children -- came to the United States from Guatemala in 1993.
Their nonimmigrant tourist visas authorized a six-month stay. They
overstayed.
In late 1997, Laura applied for asylum, listing each
family member as a derivative applicant.

Laura stated in her

application that she feared she and her family would be killed if

- 2 -

Case: 17-2068

Document: 00117326440

Page: 3

they returned to Guatemala.

Date Filed: 08/14/2018

Entry ID: 6190795

She said that she had been an active

member of the Union Centro Nacional (UCN) party.

The night of an

election, armed men from the rival political party had come to
Laura's home, guns drawn, searching for her and her brother. Laura
and her brother escaped, but Laura's aunt (a fellow UCN member)
was not so fortunate.

Several years later, shortly after the

Lemuses came to the United States, the UCN leader, Jorge Carpio
Nicolle, was assassinated.

Laura testified to this effect before

an asylum officer.

That officer determined that Laura's testimony

was not credible.

Among other issues, Laura could not describe

the UCN's politics. The officer concluded that Laura had not shown
that

she

qualified

for

asylum

and

so

he

referred

Laura's

application to the Immigration Court.
The Immigration and Naturalization Service, in June
1999, sent the Lemuses a Notice to Appear at removal proceedings.
The agency charged each as subject to removal.

At the hearing, in

March 2000, the Lemuses conceded removability.

Laura renewed her

asylum request and requested statutory withholding of removal
under 8 U.S.C. § 1231(b)(3).

She repeated the political opinion

claim from her asylum application.

Like the asylum officer, the

IJ found Laura's testimony not credible.

He denied asylum and

statutory

granted

withholding

of

removal,

voluntary departure.

- 3 -

but

the

Lemuses

Case: 17-2068

Document: 00117326440

Page: 4

Date Filed: 08/14/2018

Entry ID: 6190795

The Lemuses appealed this decision to the BIA.

They

argued that the BIA should reverse the IJ for failing to find that
Laura had a "well founded fear of persecution."

The BIA summarily

dismissed each appeal -- the Lemuses did not file briefs, and the
short statements in their appeal forms "fail[ed] to apprise [the
BIA] of the reasons" why it should reverse the IJ.
After the BIA entered its final removal order on October
30,

2001,

the

reconsider.

Lemuses

filed

seventeen

motions

to

reopen

or

Among other things, they raised claims of ineffective

assistance

of

counsel

and

Guatemala.

The BIA denied each motion.

petitions for our review.

of

changed

country

conditions

in

The Lemuses filed three

This Court denied each petition.

See

Lemus v. Gonzales, 489 F.3d 399 (1st Cir. 2007) (denying the
petition); Lemus, et al. v. Gonzales, No. 05-1273 (1st Cir. July
12, 2005) (dismissing the petition); Lemus v. Ashcroft, No. 031825 (1st Cir. Mar. 31, 2004) (summarily affirming the BIA's
decision).
In this latest motion, filed on August 29, 2017 with the
BIA, Laura and Manuel once again argued for reopening.

This time

there was a new ground: their daughter, Mirna, had become a U.S.
citizen and filed visa petitions on their behalf.

The visa

petitions were accepted, so the Lemuses would have been eligible
to apply to adjust their status to lawful permanent residents but
for the removal order.

They further argued that the BIA should

- 4 -

Case: 17-2068

Document: 00117326440

reopen

their

cases

Page: 5

sua

Date Filed: 08/14/2018

sponte

because

of

Entry ID: 6190795

"exceptional

circumstances."
The BIA denied the Lemuses' motion as untimely filed and
numerically barred.

The BIA noted that potential eligibility for

adjustment of status is not an exception for the time and number
bars on motions to reopen.

And the BIA declined to reopen the

Lemuses removal proceedings sua sponte because it did not consider
their situation "exceptional."

The BIA noted that the Department

of Homeland Security had not joined the Lemuses' motion, but that
if it later did, the Lemuses could refile.
II.
The Lemuses' petition for review argues that the BIA
erred

by

denying

their

motion

to

reopen.

Where

we

have

jurisdiction, we review the BIA's denial of a motion to reopen for
abuse of discretion.

Sánchez–Romero v. Sessions, 865 F.3d 43, 45

(1st Cir. 2017).
“[E]very alien ordered removed has a right to file one
motion”

with

proceedings.”

the

IJ

or

90

to

“reopen

his

or

her

removal

Dada v. Mukasey, 554 U.S. 1, 4–5 (2008); see 8

U.S.C. § 1229a(c)(7)(A).
within

BIA

days”

of

That "motion to reopen shall be filed

the

final

removal

order.

8

U.S.C.

§ 1229a(c)(7)(C)(i).

Here, the Lemuses brought their seventeenth

unsuccessful

for

motion

reopening

or

reconsideration

sixteen years after the initial removal order.

- 5 -

nearly

Their filings gave

Case: 17-2068

Document: 00117326440

Page: 6

Date Filed: 08/14/2018

Entry ID: 6190795

no reason why the BIA should consider their submission timely,
except to say they earlier had not been eligible to apply for
adjustment of status.1

But eligibility to apply for adjustment of

status is not an exception to the number and time bars on motions
to

reopen.

exceptions

See
to

the

id.

§§ 1229a(c)(7)(A),

bars);

8

C.F.R.

(c)(7)(C)

(listing

§ 1003.2(c)(3)

(same).

Consequently, the BIA correctly held the Lemuses had failed to
justify the delay and dismissed their motion as untimely.
III.
The Lemuses also challenge the BIA's decision not to
reopen sua sponte.

The BIA's regulations provide that the BIA may

reopen removal proceedings sua sponte (“on its own motion”) at any
time.

8 C.F.R. § 1003.2(a).

This circuit has long held that “sua

sponte authority is committed to the unbridled discretion of the
BIA, and the courts lack jurisdiction to review that judgment.”
Charuc v. Holder, 737 F.3d 113, 115 (1st Cir. 2013) (quoting Matos–
Santana v. Holder, 660 F.3d 91, 94 (1st Cir. 2011)).

The Lemuses

point to two bases for jurisdiction: the Supreme Court's decision

1

The government says that this issue was unexhausted and
waived because the Lemuses failed to point to any exceptions to
the time and number bars on their motion before the BIA or on
appeal. But this means only that they cannot now argue that they
fit into an exception to the time and number bars. This is not
their argument.
The Lemuses claim that the BIA should reopen
because of new grounds for relief. They raised this point before
the BIA and on appeal. Their failure to point to any exceptions
to the time and number bars on their motion means that their
argument is meritless, not waived.

- 6 -

Case: 17-2068

Document: 00117326440

Page: 7

Date Filed: 08/14/2018

Entry ID: 6190795

in Reyes Mata v. Lynch, 135 S. Ct. 2150 (2015), and 8 U.S.C.
§ 1252(a)(2)(D).
Mata gives no jurisdiction to review this denial of sua
sponte reopening by the BIA.
to

address

whether

appeals

In Mata, the Supreme Court declined
courts

have

exercises of that discretionary power.
2155.

authority

to

review

See Mata, 135 S. Ct. at

In fact, the Court acknowledged that courts of appeals have

held that they generally lack such authority.
This

court

has

not

determined

Id.
whether

8

U.S.C.

§ 1252(a)(2)(D) gives courts of appeals jurisdiction to review,
under certain circumstances, the BIA's decision not to reopen sua
sponte.

See Reyes v. Sessions, 886 F.3d 184, 188 (1st Cir. 2018).

We declined to decide that issue in Reyes and we decline to do so
here.

See id.

petitioner's

Section 1252(a)(2)(D) "only arguably applies to a

constitutional

or

legal

challenges

if

they

are

colorable," id. (citing Ayeni v. Holder, 617 F.3d 67, 71 (1st Cir.
2010)), and the Lemuses' are not.
The Lemuses argue that the BIA's decision not to reopen
sua sponte denied them due process and that the BIA's explanation
of its refusal to exercise sua sponte authority was so paltry that
it likewise denied them due process.

That is not so.

A due

process claim can only succeed if there is a “cognizable liberty
interest,” Matias, 871 F.3d at 72 (quoting Mejia–Orellana v.
Gonzales, 502 F.3d 13, 17 (1st Cir. 2007)). But the BIA's exercise

- 7 -

Case: 17-2068

Document: 00117326440

Page: 8

Date Filed: 08/14/2018

Entry ID: 6190795

of its “purely discretionary” sua sponte authority “does not create
a cognizable liberty interest.”

Id.

This deficiency is fatal to

their claims.
The
violated

an

Lemuses
existing

have

one

policy

final

argument:

regarding

that

reopening,

the

BIA

making

its

decision not to reopen "arbitrary, capricious, [or] an abuse of
discretion."
32 (1996).

See 5 U.S.C. § 706(2)(A); INS v. Yang, 519 U.S. 26,
They cite Matter of Garcia, 16 I. & N. Dec. 653 (BIA

1978), where the BIA determined that it would favorably exercise
its discretion when the movant was prima facie eligible for
adjustment of status.

But this argument is unavailing.

First,

Garcia was decided years before Congress enacted time and number
bars on motions to reopen.

See Dada, 554 U.S. at 13 (summarizing

the relevant congressional history).
several

occasions

significantly

Second, the BIA has on

modified

Garcia.

See,

e.g.,

Matter of Velarde-Pacheco, 23 I. & N. Dec. 253, 256 (BIA 2002),
overruled in part on other grounds by Matter of Avetisyan, 25 I.
& N. Dec. 688 (BIA 2002); Matter of H-A-, 22 I.& N. Dec. 728, 73036 (BIA 1999); Matter of Arthur, 20 I. & N. Dec. 475, 477-79 (BIA
1992).

We have thus noted having "some doubts" about Garcia's

continuing vitality.
Cir. 2009).
Lemuses

no

Dawoud v. Holder, 561 F.3d 31, 35 n.5 (1st

And third, even if Garcia remains, it gives the
colorable

claim.

Garcia

did

not

establish

"an

inflexible rule" under which an immigration judge must favorably

- 8 -

Case: 17-2068

Document: 00117326440

Page: 9

Date Filed: 08/14/2018

Entry ID: 6190795

exercise his discretion; rather, it conferred "broad discretion."
Oluyemi v. INS, 902 F.2d 1032, 1034 (1st Cir. 1990) (quoting
Garcia, 16 I. & N. at 656).

We have already concluded that the

BIA did not abuse its discretion in denying the Lemuses' time- and
number-barred

motion.

constitutional

or

legal

The
claim

Lemuses
on

which

have
we

no
might

colorable
base

our

jurisdiction if the statute were to provide an arguable basis.
IV.
The Lemuses' petition for review is denied as to their
challenge to the BIA's determination that the motion to reopen was
untimely

and

number

barred.

It

is

dismissed

for

lack

of

jurisdiction as to their challenge to the BIA's decision to not
exercise its authority to reopen sua sponte.

- 9 -