Pereyra-Martinez v. Holder , 522 F. App'x 91 ( 2013 )

11-4867
Pereyra-Martinez v. Holder
BIA
A031 021 291
UNITED STATES COURT OF APPEALS
FOR THE SECOND CIRCUIT
SUMMARY ORDER
RULINGS BY SUMMARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT. CITATION TO A SUMMARY ORDER FILED
ON OR AFTER JANUARY 1, 2007, IS PERMITTED AND IS GOVERNED BY FEDERAL RULE OF APPELLATE
PROCEDURE 32.1 AND THIS COURT’S LOCAL RULE 32.1.1. WHEN CITING A SUMMARY ORDER IN A DOCUMENT
FILED WITH THIS COURT, A PARTY MUST CITE EITHER THE FEDERAL APPENDIX OR AN ELECTRONIC
DATABASE (WITH THE NOTATION “SUMMARY ORDER”). A PARTY CITING A SUMMARY ORDER MUST SERVE A
COPY OF IT ON ANY PARTY NOT REPRESENTED BY COUNSEL.
At a stated term of the United States Court of Appeals
for the Second Circuit, held at the Thurgood Marshall United
States Courthouse, 40 Foley Square, in the City of New York,
on the 16th day of April, two thousand thirteen.
PRESENT:
ROBERT A. KATZMANN,
RICHARD C. WESLEY,
GERARD E. LYNCH,
Circuit Judges.
_____________________________________
JOSE PEREYRA-MARTINEZ,
Petitioner,
v. 11-4867
NAC
ERIC H. HOLDER, JR., UNITED STATES
ATTORNEY GENERAL,
Respondent.
_____________________________________
FOR PETITIONER: Alexander Arandia, Forest Hills, N.Y.
FOR RESPONDENT: Stuart F. Delery, Acting Assistant
Attorney General; Thomas B. Fatouros,
Senior Litigation Counsel; Robert
Michael Stalzer, Trial Attorney, Office
of Immigration Litigation, United
States Department of Justice,
Washington, DC
UPON DUE CONSIDERATION of this petition for review of a
Board of Immigration Appeals (“BIA”) decision, it is hereby
ORDERED, ADJUDGED, AND DECREED that the petition for review is
DISMISSED.
Petitioner Jose Pereyra-Martinez, a native and citizen of
the Dominican Republic, seeks review of an October 26, 2011,
order of the BIA denying his motion to reopen and reconsider.
In re Jose Pereyra-Martinez, No. A031 021 291 (B.I.A. Oct. 26,
2011). We assume the parties’ familiarity with the underlying
facts and procedural history of the case.
We lack jurisdiction to review a final order of
deportation, including an order denying a motion to reopen and
reconsider, issued against an alien such as Pereyra-Martinez
who was found deportable by reason of having committed an
offense relating to a controlled substance. See 8 U.S.C.
§ 1252(a)(2)(C); see also Santos-Salazar v. U.S. Dep’t of
Justice, 400 F.3d 99, 102-03 (2d Cir. 2005); Durant v. INS,
393 F.3d 113, 115 (2d Cir. 2004). However, we retain
jurisdiction to review colorable constitutional claims or
questions of law. See 8 U.S.C. § 1252(a)(2)(D). Pereyra-
Martinez raises no colorable constitutional claims or
questions of law in challenging the BIA’s denial of his
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motion. See Barco-Sandoval v. Gonzales, 516 F.3d 35, 40 (2d
Cir. 2008).
It is undisputed that Pereyra-Martinez’s 2011 motion,
filed more than seven years after the agency’s deportation
order became final, was untimely. See 8 U.S.C.
§ 1229a(c)(6),(7). Because the untimely filing of Pereyra-
Martinez’s motion was not excused by any statutory exception,
see 8 U.S.C. § 1229a(c)(7)(C)(ii)-(iv), his motion “could only
be considered upon exercise of the Agency’s sua sponte
authority.” Mahmood v. Holder, 570 F.3d 466, 469 (2d Cir.
2009); 8 C.F.R. § 1003.2(a). Such a decision is “entirely
discretionary” and beyond the scope of our review. Ali v.
Gonzales, 448 F.3d 515, 518 (2d Cir. 2006). Nevertheless,
“where the Agency may have declined to exercise its sua sponte
authority because it misperceived the legal background and
thought, incorrectly, that a reopening would necessarily fail,
remand to the Agency for reconsideration in view of the
correct law is appropriate.” Mahmood, 570 F.3d at 469; see
also Aslam v. Mukasey, 537 F.3d 110, 115 (2d Cir. 2008);
8 U.S.C. § 1252(a)(2)(D).
Here, there is no indication that the BIA misperceived
the law in declining to reopen or reconsider. Indeed, as the
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BIA noted, contrary to Pereyra-Martinez’s argument, the
Supreme Court’s decision in Lopez v. Gonzales, 549 U.S. 47(2006), had no bearing on Pereyra-Martinez’s deportability.
Lopez addressed the issue of whether a state conviction
constitutes an aggravated felony under the Immigration and
Nationality Act. See id., at 53, 60. Here, Pereyra-Martinez
was charged as subject to deportation as an alien convicted of
a law relating to a controlled substance, not an aggravated
felony. Similarly, Pereyra-Martinez’s unexhausted argument
that the Supreme Court’s decision in Vartelas v. Holder, 132
S. Ct. 1479 (2012), provided a basis for sua sponte reopening
is frivolous because, unlike the petitioner in Vartelas,
Pereyra-Martinez was not found deportable because of a
retroactive application of the travel restraint in the Illegal
Immigration Reform and Immigrant Responsibility Act. See id.
at 1488-90.
We decline to consider Pereyra-Martinez’s arguments
regarding the departure bar, as the BIA did not apply that bar
in this case. See Lin Zhong v. U.S. Dep’t of Justice, 480
F.3d 104, 122 (2d Cir. 2007).
For the foregoing reasons, the petition for review is
DISMISSED. Pereyra-Martinez’s pending request for oral
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argument is DENIED in accordance with Federal Rule of
Appellate Procedure 34(a)(2), and Second Circuit Local Rule
34(b).
FOR THE COURT:
Catherine O’Hagan Wolfe, Clerk
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