Mickel Mesa Ramirez, et al v. Attorney General United State

Filing

NOT PRECEDENTIAL OPINION Coram: HARDIMAN, ROTH and FISHER, Circuit Judges. Total Pages: 5. Judge: ROTH Authoring.

Case: 16-2713

Document: 003112781583

Page: 1

Date Filed: 11/17/2017

NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
________________
No. 16-2713
________________
MICKEL MESA RAMIREZ
a/k/a Mickel Mesa,
Petitioner
v.
ATTORNEY GENERAL OF THE
UNITED STATES OF AMERICA,
Respondent
________________
On Petition for Review of an Order of the
Board of Immigration Appeals
(Agency No. A044-686-503)
Immigration Judge: Leo A. Finston
________________
Submitted under Third Circuit LAR 34.1(a)
on May 24, 2017
Before: HARDIMAN, ROTH and FISHER, Circuit Judges
(Opinion filed: November 17, 2017)

________________
OPINION*
________________

*

This disposition is not an opinion of the full Court and pursuant to I.O.P. 5.7 does not
constitute binding precedent.

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ROTH, Circuit Judge
Mickel Mesa Ramirez, an immigrant who was ordered removed because of his
multiple criminal convictions, petitions for relief from an order denying his motion to
reopen his case and reissue a previous Board of Immigration Appeals (BIA) order. For
the foregoing reasons, we will deny in part, and dismiss in part, Mesa’s petition for
review.
I.
Mesa, a citizen of the Dominican Republic and a permanent resident of the United
States, was ordered removed in May 2014 on account of his numerous criminal
convictions, including various possession of controlled substances charges and one
distribution charge. Mesa appealed to the BIA, and the BIA affirmed the removal order.
Mesa was ineligible for cancellation of removal because his distribution charge was
designated as an aggravated felony. Accordingly, Mesa was deported in January 2015.
After he was deported, the Superior Court of New Jersey vacated the conviction for his
aggravated felony charge based on ineffective assistance of counsel, rendering him
eligible for cancellation of removal. On July 2, 2015, the BIA received Mesa’s motion to
reopen his case.1 Later in the month, the National Immigration Project of the National
Lawyers Guild requested to file an amicus brief in this appeal.
In August 2015, the BIA denied the motion to reopen on timeliness grounds, as the
motion was filed more than 90 days after the final administrative order. Because Mesa

1

Notably, Mesa filed his appeal on April 2, 2015, but the BIA rejected it because he
failed to file a change of address form.
2

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claims that he was not served with notice of this decision, in October 2015, he requested
that the BIA reissue the decision; when this was denied, he renewed his request in
February 2016. In March 2016, the BIA vacated the August 2015 decision and issued an
Amended Order clarifying that it had accepted the National Lawyers Guild as amicus
curiae, but again denying Mesa’s motion to reopen. Days later, Mesa submitted yet
another motion to reissue and reopen. On May 13, 2016, the BIA construed Mesa’s latest
request to reissue and reopen as a motion to reopen and reconsider; it again denied both
motions. Mesa then timely petitioned for review to this Court.
II.2
On appeal, Mesa raises numerous arguments, including that 1) the BIA
erroneously construed Mesa’s May 2016 motion to reopen and reissue as a motion to
reopen and reconsider, 2) this Court should review the BIA’s decision from August 2015
because Mesa was never served with it, and 3) the BIA erroneously denied his motion to
reopen. For the following reasons, we do not find any of these arguments meritorious.
A.
Mesa first argues that the BIA erroneously failed to rule on Mesa’s motion to
reissue. Mesa correctly notes that while his motion was titled a motion to reopen and
reissue, the BIA construed it as a motion to reopen and reconsider because the BIA
thought he was “not actually seeking reissuance.”3

2

We have jurisdiction over petitions for review of final agency decisions under
8 U.S.C. § 1252.
3
App. 2 n.1.
3

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While the BIA did disregard the title of the motion, its decision to construe the
motion as a motion for reconsideration and not a motion to reissue was not erroneous.4
The BIA has the ability to construe a motion when it is erroneously titled.5 Here, the
opinion Mesa requested to be reissued was already vacated,6 rendering its reissuance an
impossibility. Additionally, the motion does not mention reissuance anywhere other than
the title; the substance of the body discusses the motion to reopen and Mesa’s remaining
removable acts.7 Accordingly, the BIA liberally construed the motion as a motion for
reconsideration in Mesa’s favor.
B.
Mesa alternatively requests that we review the BIA’s August 2015 decision
because his petition for review of that decision is still timely. A petition for review must
be filed within 30 days of the final order of removal,8 and this period does not begin until
the BIA mails its decision to the petitioner’s address of record.9 Mesa claims that

4

Circuits have reviewed this decision under inconsistent standards. Compare Krougliak
v. I.N.S., 289 F.3d 457, 460 (7th Cir. 2002) (applying abuse of discretion), with Wang v.
Ashcroft, 260 F.3d 448, 452 (5th Cir. 2001) (applying plain error). Under any of these
standards, however, the BIA’s decision was proper.
5
See, e.g., Krougliak, 289 F.3d at 461 (approving the BIA’s construction of a motion to
remand as a motion to reopen); Wang, 260 F.3d at 452 (same).
6
App. 28 n. 1.
7
App. 14-17.
8
8 U.S.C. § 1252(b)(1). Because the denial of a motion to reopen is also a final order of
removal, Jahjaga v. Attorney Gen. of U.S., 512 F.3d 80, 82 (3d Cir. 2008) (citing Cruz v.
Attorney Gen. of U.S., 452 F.3d 240, 246 (3d Cir. 2006)), this statute of limitations
applies here.
9
Singh v. I.N.S., 315 F.3d 1186, 1188 (9th Cir. 2003) (citation omitted); see also Radkov
v. Ashcroft, 375 F.3d 96, 99 (1st Cir. 2004).
4

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because the August 2015 decision was never served on him, his appeal remains timely.
We disagree.
Mesa contends that he never received the decision because the BIA’s decision did
not purport to have been mailed to the Dominican Republic. However, in July 2015
Mesa requested that any letters “continue to be mailed to” his sister’s address, as it is
“easier for her to receive [his] documents.”10 He filed a change-of-address form,
indicating that his sister’s New Jersey address should be the address of record,11 and the
August 2015 decision was mailed to this address.12 Mesa does not allege that the
decision did not arrive at the address on record; accordingly, the thirty-day period in
which to file a petition for review has expired, and his petition for review is untimely.
C.
Finally, Mesa appeals the BIA’s August 2015 denial of his motion to reopen.
Because this petition for review is untimely, as noted above, we need not discuss its
merits.
III.
For the aforementioned reasons, we will dismiss in part and deny in part the
petition for review.

10

App. 130.
App. 131.
12
App. 59.
11

5