Rodriguez-Torres v. Attorney General of the United States , 312 F. App'x 455 ( 2008 )

Opinions of the United
2008 Decisions States Court of Appeals
for the Third Circuit
5-16-2008
Rodriguez-Torres v. Atty Gen USA
Precedential or Non-Precedential: Non-Precedential
Docket No. 07-1215
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NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
___________
No. 07-1215
___________
JUSTO JACIENTO RODRIGUEZ-TORRES,
Petitioner
v.
ATTORNEY GENERAL OF THE UNITED STATES,
Respondent
____________________________________
On Petition for Review of an Order of the
Board of Immigration Appeals
(Agency No. A37 158 303)
Immigration Judge: Honorable Henry S. Dogin
____________________________________
Submitted Pursuant to Third Circuit LAR 34.1(a)
April 23, 2008
Before: MCKEE, NYGAARD and ROTH, Circuit Judges
(Opinion filed: May 16, 2008)
___________
OPINION
___________
PER CURIAM
Justo Jaciento Rodriguez-Torres petitions for review of a Board of Immigration
Appeals (“BIA”) decision denying his motion to reopen his immigration proceedings.
We will dismiss the petition for review.
Rodriguez-Torres is a native and citizen of the Dominican Republic. He came to
the United States in 1981 as an immigrant. In 1997, Rodriguez-Torres applied for
admission to the United States as a returning resident. At that time, an order to show
cause was issued charging that he was subject to deportation based upon a 1988
conviction in New York state court for criminal possession of a weapon in the third
degree.
In 2000, the Immigration Judge (“IJ”) denied Rodriguez-Torres’ motion to
terminate the proceedings and ordered his deportation. The IJ found him ineligible for
suspension of deportation because he had not maintained a continuous physical presence
here for ten years following the commission of his crime, as required by statute. The IJ
also found him ineligible for a waiver under Section 212(c) of the Immigration and
Nationality Act. In 2003, the BIA affirmed the IJ’s decision without opinion. The BIA
also denied Rodriguez-Torres’ subsequent motion to reopen the proceedings.
In 2004, the BIA granted a joint motion by Rodriguez-Torres and the Department
of Homeland Security to reopen and remand the proceedings to determine Rodriguez-
Torres’ eligibility for suspension of deportation based upon a BIA decision holding that a
firearms offense does not stop the accrual of continuous residence for purposes of that
form of relief. On remand, however, Rodriguez-Torres admitted that he had a 2004
felony conviction in New Jersey state court for theft of movable property, which made
him ineligible for suspension of deportation. Rodriguez-Torres sought cancellation of
2
removal, but he acknowledged that, unless the Government “repapered” his case, he was
not eligible for this form of relief.1 The Government stated that it was unable to repaper
the case because the applicable regulations were not in effect. The IJ again ordered
Rodriguez-Torres’ deportation.
In March 2006, the BIA dismissed Rodriguez-Torres’ appeal. Although
Rodriguez-Torres asserted that the repapering regulations had now been issued, and he
was eligible for cancellation of removal, the BIA found that it could not afford relief
involving the discretion of the Department of Homeland Security. The BIA also noted
that Rodriguez-Torres was not in a favorable position to ask the Department to agree to
hold the proceedings in abeyance given his 2004 theft conviction. The BIA further stated
that repapering was not available to Rodriguez-Torres, and that the IJ’s denial of
suspension of deportation due to his 2004 conviction was correct.
In November 2006, Rodriguez-Torres sought to reopen the proceedings based
upon a pending petition for an alien relative filed on his behalf by his daughter, who had
turned twenty-one years old in April 2006. Rodriguez-Torres asserted that he was eligible
for adjustment of status upon approval of the petition, and that the BIA should sua sponte
reopen the proceedings so that he could pursue relief from removal.
1
“Repapering” refers to an election by the Attorney General to terminate deportation or
exclusion proceedings pending on the IIRIRA’s enactment date, and to reinitiate
proceedings under the IIRIRA. See Rojas-Reyes v. INS, 235 F.3d 115, 125 (2d Cir.
2000) (explaining repapering). The effect of being repapered is to make an alien who
was ineligible for suspension of deportation potentially eligible for cancellation of
removal. Id.
3
In December 2006, the BIA denied the motion to reopen as untimely because the
90-day time period for filing the motion had expired in June 2006. The BIA concluded
that no exceptional situation warranted reopening sua sponte, noting that Rodriguez-
Torres’ daughter had turned 21 years old in April 2006, and that she could have filed a
visa petition on his behalf before the motion deadline.
Rodriguez-Torres raises four issues for our review. He argues that he is now
prima facie eligible to adjust his status because the petition for alien relative filed on his
behalf was approved on March 29, 2007. He also argues that the BIA erred in its March
2006 decision by finding him ineligible for suspension of deportation based on his 2004
conviction. Rodriguez-Torres further argues that the BIA abused its discretion in denying
his motion to reopen sua sponte because exceptional circumstances warranted reopening.
Finally, Rodriguez-Torres contends that the BIA violated the Administrative Procedures
Act, the Immigration and Naturalization Act, and his due process rights because the
Department of Homeland Security denied him the ability to repaper his case.
We must first address our jurisdiction to entertain the petition for review. The
Government correctly argues that we lack jurisdiction to review the BIA’s March 2006
decision. Rodriguez-Torres’ petition for review is only timely with respect to the BIA’s
order denying his motion to reopen. See Stone v. I.N.S., 514 U.S. 386, 405-06 (1995).2
Thus, we lack jurisdiction to consider Rodriguez-Torres’ arguments that the BIA erred in
2
Rodriguez-Torres did file a petition for review of the March 2006 decision, but that
petition was dismissed for lack of prosecution.
4
its March 2006 decision by finding him ineligible for suspension of deportation, and that
the BIA violated the Administrative Procedures Act, the Immigration and Naturalization
Act, and his due process rights because he was denied the ability to repaper his case.
Because Rodriguez-Torres is removable under 8 U.S.C. § 1227(a)(2)(C) based on
his commission of a firearms offense, we also lack jurisdiction to review the denial of his
motion to reopen, except to the extent it raises constitutional claims and questions of law.
Cruz v. Attorney General, 452 F.3d 240, 246-47 (3d Cir. 2006). In his brief, Rodriguez-
Torres disputes the BIA’s finding of no exceptional circumstances given that his daughter
could have filed her visa petition before the time to file a motion to reopen expired. He
contends that his daughter could not have filed her petition earlier because she had
difficulty obtaining a birth certificate reflecting that he is her father.
Rodriguez-Torres’s argument that the BIA erred in finding him legally ineligible for relief
is within our jurisdiction. Cruz, 452 F.3d at 250. However, to the extent that Rodriguez-
Torres argues that his daughter’s inability to obtain a birth certificate constitutes an
exceptional circumstance, his claim is based on evidence not in the administrative record that
is therefore beyond the scope of our review. McAllister v. Attorney General, 444 F.3d 178,
190 (3d Cir. 2006). The evidence in the administrative record shows only that his daughter
filed a visa application after the deadline to reopen had passed, and we can find no support
for the claim that the existence of a late-filed pending visa application constitutes an
5
exceptional circumstance.3
Finally, Rodriguez-Torres’ argument that he is now eligible for an adjustment of
status based on an approved petition for alien relative is not properly before us. We may
not consider evidence outside the administrative record. McAllister, 448 F.3d at 190.
For the foregoing reasons, we will deny the petition for review. The
Government’s motion to dismiss is granted.
3
We need not address the Government’s other jurisdictional arguments because
jurisdiction is lacking on this basis. 6