Cordoba-Quiroz v. Gonzales , 233 F. App'x 5 ( 2007 )

Not for Publication in West's Federal Reporter
United States Court of Appeals
For the First Circuit
No. 06-1600
CLAUDIA PATRICIA CÓRDOBA-QUIROZ,
Petitioner,
v.
ALBERTO R. GONZÁLES,
Attorney General of the United States,
Respondent.
ON PETITION FOR REVIEW OF AN ORDER OF
THE BOARD OF IMMIGRATION APPEALS
Before
Torruella and Lynch, Circuit Judges,
and Lisi,* District Judge.
Jeffrey B. Rubin, and Law Offices of Jeffrey B. Rubin, P.C.,
on brief for petitioner.
Robbin K. Blaya, Attorney, Office of Immigration Litigation,
Civil Division, U.S. Department of Justice, Peter Keisler,
Assistant Attorney General, and Anthony W. Norwood, Senior
Litigation Counsel, on brief for respondent.
May 25, 2007
*
Of the District of Rhode Island, sitting by designation.
TORRUELLA, Circuit Judge. Petitioner Claudia Patricia
Córdoba-Quiroz ("Córdoba") appeals the denial of a motion for
reconsideration before the Board of Immigration Appeals (the
"BIA"). She claims that the BIA should have exercised its sua
sponte authority to reopen her removal proceedings on the basis of
a change in the law affecting her eligibility for relief. We
affirm the BIA's decision.
I. Background
Córdoba is a thirty-five-year-old native and citizen of
Colombia. In February 2002, she came to the United States and
requested asylum. On March 5, 2002, Córdoba was paroled into the
United States and placed in removal proceedings. She filed an
application for asylum, withholding of removal, and protection
under the Convention Against Torture in February 2003. An
Immigration Judge ("IJ") denied her request for relief and ordered
her removed on May 4, 2004.
On May 28, 2004, Córdoba married Miguel Arroyo-Vargas, a
U.S. citizen, who filed an I-130 petition for an immigrant visa on
her behalf on April 7, 2005. As of the time of this appeal, the
petition had not been approved.
Córdoba then filed an appeal of the IJ's decision, which
the BIA denied without opinion on August 23, 2005. Córdoba did not
appeal this decision, but instead filed a motion to reopen her
removal proceedings based on the First Circuit's decision in Succar
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v. Ashcroft, 394 F.3d 8 (1st Cir. 2005), which she claims is a
significant change in the law affecting her eligibility for relief.
Her motion was received on November 22, 2005 -- one day late1 --
due to a clerical error; she prepared the package for overnight
mailing via UPS, but it was inadvertently sent via second day air
instead. On December 28, 2005, the BIA denied her motion to reopen
as untimely.
Córdoba then filed a motion for reconsideration. On
March 7, 2006, the BIA denied the motion on the ground that
Córdoba's stated reason for the untimeliness of the motion to
reopen -- clerical error -- did not rise to the level of
"exceptional circumstances" sufficient to warrant the exercise of
the BIA's sua sponte authority. Córdoba now appeals the BIA's
denial of her motion for reconsideration.
II. Analysis
On appeal, Córdoba argues that the BIA erred in denying
her motion for reconsideration because it failed to consider all
the relevant factors in her case. Specifically, she claims that
the BIA should have exercised its sua sponte authority to reopen
her removal proceedings based on a significant change in the law,
and that her motion to reopen was not untimely because she filed it
within a reasonable time after the change in the law.
1
Córdoba's motion to reopen was due ninety days after the final
agency decision, which in this case was the BIA's denial of her
appeal of the IJ's decision. See 8 C.F.R. § 1003.2(c)(2).
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A. Sua Sponte Authority
The BIA has the discretionary authority to reopen removal
proceedings on its own motion at any time, see 8 C.F.R. § 1003.2(a), although it reserves that discretion for "exceptional
situations." In re J-J-, 21 I. & N. Dec. 976, 984 (1997) ("The
power to reopen on our own motion is not meant to be used as a
general cure for filing defects or to otherwise circumvent the
regulations, where enforcing them might result in hardship."). In
this case, the BIA determined that a clerical error did not rise to
the level of an exceptional circumstance. Córdoba argues that the
BIA should have exercised its sua sponte authority because Succar,
394 F.3d 8, represents a significant change in the law, which
affects her eligibility for relief. See In re X-G-W-, 22 I. & N.
Dec. 71, 73 (1998) (finding an exceptional circumstance warranting
sua sponte relief where "a significant change in the immigration
law made relief available to the applicant on the basis of the same
asylum application he filed initially").2
As we have explained before, "the decision of the BIA
whether to invoke its sua sponte authority is committed to its
unfettered discretion." Luis v. INS, 196 F.3d 36, 40 (1st Cir.
2
The "significant change" in this case amounted to an about-face
in immigration law concerning the possibility of relief for aliens
who had suffered under coercive population control policies. In re
X-G-W-, 22 I. & N. Dec. at 73. The BIA announced the close of its
policy of granting untimely motions to reopen removal proceedings
on that basis in In re G-C-L, 23 I. & N. Dec. 359, 361-62 (2002).
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1999). Therefore, we have no jurisdiction to review the BIA's
discretionary decision because "[t]here are no guidelines or
standards which dictate how and when the BIA should invoke its sua
sponte power." Id. at 41; accord Zhang v. Gonzáles, 469 F.3d 51,
53 (1st Cir. 2006); Prado v. Reno, 198 F.3d 286, 292 (1st Cir.
1999). In re X-G-W-, 22 I. & N. Dec. 71, in which the BIA
exercised its authority based on a profound change in immigration
law, does not change this analysis. It is merely an example of a
situation in which the BIA found it appropriate to exercise its sua
sponte power; the case provides no meaningful guidance on the
circumstances under which the BIA should exercise its discretionary
authority. Luis, 196 F.3d at 40-41 ("[I]f no judicially manageable
standards are available for judging how and when an agency should
exercise its discretion, then it is impossible to evaluate agency
action for 'abuse of discretion.'" (alteration in original)
(quoting Heckler v. Chaney, 470 U.S. 821, 830 (1985))); see also
Ekimian v. INS, 303 F.3d 1153, 1158 (9th Cir. 2002) ("The cases in
which we have reviewed a BIA decision under an 'exceptional
circumstances' standard have been those in which a relevant statute
explicitly defined what Congress considers an 'exceptional
circumstance.'"). Thus, we have no jurisdiction to review the
BIA's denial of Córdoba's request to reopen her removal proceedings
sua sponte.
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B. Timeliness
The BIA initially rejected Córdoba's motion to reopen
because it was not filed within ninety days of the BIA's final
decision in her case. Córdoba argues on appeal that her motion to
reopen was not untimely because she filed it within a reasonable
time after Succar -- the case that she alleges significantly
changed the law affecting her eligibility for relief -- was handed
down.3 We review the BIA's denial of a motion for reconsideration
for abuse of discretion. Keo Chan v. Gonzáles, 413 F.3d 161, 164
(1st Cir. 2005); see also Roberts v. Gonzáles, 422 F.3d 33, 35 (1st
Cir. 2005) ("[W]e review the BIA's denial of a motion to reopen
based on timeliness grounds under a highly deferential abuse of
discretion standard. In order to prevail under this standard, the
movant must carry the heavy burden of establishing that the BIA
made an error of law or acted in a manifestly arbitrary or
capricious manner." (citation omitted)).
Generally, an alien must file a motion to reopen within
ninety days of a final administrative decision. 8 U.S.C. § 1229a
(c)(7)(C); see also 8 C.F.R. § 1003.2(c)(2) (delineating exceptions
3
It is unclear whether Córdoba raised this issue before the BIA
and therefore whether we should reach her argument at all. See
Bernal-Vallejo v. INS, 195 F.3d 56, 64 (1st Cir. 1999) ("Usually
issues not raised before the BIA may not be raised for the first
time on a petition for review."). Because it does not affect the
outcome of the case, however, we will assume for purposes of our
review that she did raise the issue in her motion for
reconsideration.
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to the general rule, none of which are applicable in this case).
Córdoba's motion was received ninety-one days after the BIA's final
decision in her case. Thus, the BIA did not abuse its discretion
in denying Córdoba's motion for reconsideration because it reached
the correct legal conclusion that her motion to reopen was
untimely.4 See Chen v. Gonzáles, 415 F.3d 151, 153 (1st Cir. 2005)
("An abuse of discretion exists 'where the BIA misinterprets the
law, or acts either arbitrarily or capriciously.'").
III. Conclusion
For the reasons stated above, we affirm the BIA's denial
of Córdoba's motion for reconsideration.
Affirmed.
4
To the extent that Córdoba's timeliness argument relies on the
BIA's sua sponte power to reopen her removal proceedings despite
her tardiness, we reiterate that we have no jurisdiction to review
the BIA's use of that discretion. See Zhang, 469 F.3d at 53.
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