Claudia Izaguirre v. Attorney General United States ( 2022 )

NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
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No. 20-3382
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CLAUDIA IZAGUIRRE,
Petitioner
v.
ATTORNEY GENERAL UNITED STATES OF AMERICA
________________
On Petition for Review from the
Board of Immigration Appeals
(Agency No. A075-968-003)
Immigration Judge: Annie S. Garcy
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Submitted Pursuant to Third Circuit L.A.R. 34.1(a)
January 24, 2022
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Before: CHAGARES, Chief Judge, McKEE and MATEY, Circuit Judges
(Opinion filed: January 25, 2022)
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OPINION*
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*
This disposition is not an opinion of the full Court and, pursuant to I.O.P. 5.7, does
not constitute binding precedent.
CHAGARES, Chief Judge.
Claudia Izaguirre petitions for review of the denial of her motion to reopen before
the Board of Immigration Appeals (“BIA”). Because we conclude that no exception
exists to our general lack of jurisdiction to review such denials, we must dismiss the
petition.
I.
Claudia Izaguirre is a native and citizen of Guatemala. She came to the United
States with her family on a B-2 tourist visa when she was ten years old, in 1991.
Izaguirre was a derivative applicant on her father’s application for asylum; the
Immigration Judge (“IJ”) waived Ms. Izaguirre’s appearance at her father’s merits
hearing in August 1999. By the date of the hearing, Izaguirre, who was eighteen, was no
longer living with her parents. She avers that she was not aware that the asylum
application was denied, and only became aware that she lacked legal status when she was
unable to renew her employment authorization several years later, around 2004 or 2005.
Since that time, Izaguirre received Deferred Action for Childhood Arrivals (“DACA”).
Izaguirre’s daughter, born in the United States, filed an I-130 petition for Izaguirre, which
was approved in 2019.
Izaguirre filed a motion to reopen her case with the BIA in order to allow her to
apply for adjustment of status. The Department of Homeland Security (“DHS”) did not
oppose the motion, but the BIA denied the motion. Izaguirre filed a timely petition for
review.
2
II.1
Motions to reopen must normally be filed within ninety days of an
administratively final removal order, subject to certain exceptions not relevant here. See
8 C.F.R. § 1003.2(c). Because Izaguirre filed her motion outside that window, she relied
upon the BIA’s authority to reopen cases sua sponte at any time. See 8 C.F.R. §
1003.2(a). “The decision to grant or deny” such a motion “is within the discretion of the
[BIA]” and the BIA may deny a motion “even if the party moving has made out a prima
facie case for relief.” Id.We have held that because the BIA’s discretion in this area is essentially
unfettered, we may only exercise jurisdiction to review denials of sua sponte motions
when (1) the BIA relies on an incorrect legal premise in its analysis, or (2) the BIA has
constrained itself through rule or settled course of adjudication. See Park v. Att’y Gen.,
846 F.3d 645, 651—52 (3d Cir. 2017). Izaguirre argues that the BIA has consistently
granted reopening in factually analogous circumstances (for “DACA recipients who are
the beneficiaries of approved I-130 immediate relative visa petitions and adjustment
eligible . . . when there was no opposition filed by [DHS]”) such that the second
exception applies. Izaguirre Br. 5.
We disagree. A review of the BIA’s decisions reveals that the BIA has not
constrained its discretion through a settled course of adjudication, and so we must dismiss
the petition for lack of jurisdiction. The BIA has previously held that no exceptional
1
We generally have jurisdiction to review BIA decisions pursuant to 8 U.S.C. § 1252(a).
Below we consider whether we have jurisdiction in this case.
3
situation is presented where a noncitizen becomes eligible for an immigrant visa. See
Matter of G-D-, 22 I&N Dec. 1132, 1133 n.1, 1137 (BIA 1999). This includes instances
where the noncitizen received DACA, has lived in the United States for many years, and
has no criminal history. See, e.g., In re Alisson Carlos da Costa-Bigas, AXXX XX1 787,
2016 WL 6519973, at *3 (BIA Sept. 27, 2016) (“B]ecoming potentially prima facie
eligible to adjust status long after issuance of a final administrative decision is not an
exceptional situation justifying the exercise of our sua sponte authority.”).
We are sympathetic to Ms. Izaguirre and her difficult position. But the underlying
regulations give the BIA almost unfettered discretion in deciding sua sponte motions and
Ms. Izaguirre has not met her burden to show that one of the exceptions to our general
lack of jurisdiction in this area applies.2
III.
For the foregoing reasons, we will dismiss Izaguirre’s petition for review.
2
Izaguirre argues that her Due Process rights were violated when the IJ waived her
presence at the merits hearing and imputed her father’s state of mind to her even though
she was emancipated, but she did not raise this issue before the BIA, and we cannot
consider it here. See Castro v. Att’y Gen., 671 F.3d 356, 365 (3d Cir. 2012) (“A
petitioner’s failure to exhaust an issue by presenting it to the BIA deprives us of
jurisdiction to consider that issue.”).
4