Ramon-Sanchez v. Holder , 359 F. App'x 525 ( 2010 )

IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT United States Court of Appeals
Fifth Circuit
FILED
January 6, 2010
No. 08-60766 Charles R. Fulbruge III
Summary Calendar Clerk
AUGUSTO RAMON-SANCHEZ
Petitioner
v.
ERIC H HOLDER, JR, U S ATTORNEY GENERAL
Respondent
Petition for Review of an Order of
the Board of Immigration Appeals
No. A39 298 885
Before KING, DAVIS, and HAYNES, Circuit Judges.
PER CURIAM:*
Augusto Ramon-Sanchez, a native and citizen of Mexico, petitions for a
review of the decision of the Board of Immigration Appeals, denying his motion
to reopen his administrative case based on lack of jurisdiction pursuant to the
“post-departure bar” of 8 C.F.R. § 1003.2(d). Ramon argues that the BIA erred
in denying his motion to reopen or reconsider his case following Lopez v.
Gonzales, 549 U.S. 47 (2006), which he argues overruled the legal basis for his
*
Pursuant to 5TH CIR . R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR .
R. 47.5.4.
No. 08-60766
removal from the United States. For the following reasons, the petition for
review is denied.
BACKGROUND
Ramon was admitted to the United States as a lawful permanent resident
in April 1986. In November 2001, Ramon was convicted of possession of cocaine
in Texas state court, and he subsequently departed the United States. In June
2004 Ramon attempted to reenter the United States, but the Department of
Homeland Security (DHS) served Ramon with a Notice to Appear, charging him
as inadmissible to the United States based on his conviction for a controlled
substance offense. INA § 212(a)(2)(A)(i)(II); 8 U.S.C. § 1182(a)(2)(A)(i)(II).
In August 2004, Ramon appeared before an Immigration Judge (IJ) and
admitted alienage, but he denied the charge of removability on the basis of his
controlled substance conviction. The IJ initially found that the DHS had not
produced sufficient documentation of Ramon’s prior conviction, but the IJ
granted the DHS a continuance to obtain evidence of Ramon’s 2001 conviction.
After the DHS produced certified copies of Ramon’s conviction, the IJ found
Ramon removable as charged based on his conviction for cocaine possession.
Following this finding, Ramon made an application for cancellation of
removal or, alternatively, termination of his removal proceedings. The IJ
concluded that Ramon was statutorily ineligible for cancellation of removal and
thus pretermitted his request for relief. In an oral decision on September 21,
2004, the IJ found that Ramon’s cocaine possession conviction was punishable
under the Controlled Substances Act and a felony under Texas law. Accordingly,
the IJ ruled that Ramon’s conviction qualified as an aggravated felony,
rendering Ramon ineligible for cancellation of removal. See INA § 240A(a)(3);
8 U.S.C. § 1229b(a)(3).
Ramon then filed a notice of appeal with the Board of Immigration
Appeals (BIA) on September 22, 2004, and on February 28, 2005, the BIA
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affirmed the IJ’s decision without opinion. Ramon then petitioned this court for
review, and on June 2, 2005, we granted the Attorney General’s motion to
dismiss. Ramon-Sanchez v. Gonzales, No. 05-60194 (5th Cir. Jun. 2, 2005),
Ramon then departed the United States pursuant to the order of removal.
Subsequent to Ramon’s departure, the Supreme Court decided Lopez v.
Gonzales, in which the Court held that a first-time conviction for simple
possession of drugs that is neither an illicit trafficking offense nor a federal
felony does not constitute an aggravated felony for immigration purposes. 549
U.S. at 53–57; see also Ovalles v. Holder, 577 F.3d 288, 291 (5th Cir. 2009)
(discussing Lopez v. Gonzales). Based on this decision, Ramon filed a motion on
June 5, 2008, arguing that the BIA should sua sponte reopen or reconsider his
case because his situation was substantially similar to the one presented in
Lopez v. Gonzales.
Notwithstanding this request, the BIA denied Ramon’s motion for lack of
jurisdiction on July 17, 2008. Particularly, the BIA determined that Ramon’s
motion must be denied because his motion was untimely filed and the BIA
lacked jurisdiction to sua sponte reopen or reconsider Ramon’s case after he had
been removed to Mexico. The BIA based its decision on 8 C.F.R. § 1003.2(d),
which provides in relevant part: “A motion to reopen or a motion to reconsider
shall not be made by or on behalf of a person who is the subject of exclusion,
deportation, or removal proceedings subsequent to his or her departure from the
United States.” Ramon then timely filed a petition for review with this court.
In this petition, Ramon admits that his application is untimely and that he
currently resides in Mexico.
DISCUSSION
The central issue in this case is whether the BIA erred in determining that
it lacks jurisdiction to sua sponte grant a removed alien’s untimely motion to
reconsider or reopen his case, when the underlying legal basis for removal is
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later determined to be erroneous. We recently confronted this issue in Ovalles
and held that the BIA did not err in determining that it did not have jurisdiction
to reopen or reconsider such a case because 8 C.F.R. § 1003.2(d) limited the
BIA’s sua sponte authority to reconsider or reopen proceedings of petitioners who
had departed the United States, notwithstanding the change in the underlying
legal basis for removal. 577 F.3d at 300.
In Ovalles, Ovalles, a lawful permanent resident, was convicted of
attempted possession of drugs in Ohio state court. Id. at 291. As a result of this
conviction, Ovalles was charged as removable. Id. Following this charge,
Ovalles made an application for cancellation of removal. Id. The IJ granted
Ovalles’s application, but on appeal to the BIA, the BIA held, on March 8, 2004,
that Ovalles’s conviction was an aggravated felony, and therefore Ovalles was
ineligible for cancellation of removal. Id. Ovalles was removed to the Dominican
Republic on April 14, 2004. Id.
Following the Supreme Court’s decision in Lopez v. Gonzales, Ovalles filed
a motion with the BIA on July 27, 2007, to sua sponte reconsider or reopen his
case, arguing that the Supreme Court’s decision undermined the legal basis for
his removal. Id. However, the BIA refused to consider Ovalles’s motion on the
basis of 8 C.F.R. § 1003.2(d) because the BIA concluded that the post-departure
bar embodied in that section overrode its authority to sua sponte reopen or
reconsider Ovalles’s case. Id.
On petition for review to this court, we reviewed the BIA’s decision not to
reopen or reconsider Ovalles’s case based on its interpretation of the statute and
regulations as a question of law. Id. After reviewing Ovalles’s various legal
challenges, we concluded that the BIA’s determination that § 1003.2(d) overrode
its sua sponte authority to reconsider or reopen Ovalles’s cases was reasonable;
that the post-departure bar of § 1003.2(d) was intended to apply to aliens who
depart the country following termination of proceedings such that the applying
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No. 08-60766
this section in Ovalles’s case was not “arbitrary and capricious;” and that
Ovalles’s due process rights were not violated by the BIA’s decision not to reopen
or reconsider his case. Id. at 299–300. Specifically, regarding the applicability
§ 1003.2(d) to Ovalles’s case, we stated:
. . . that the post-departure bar on motions to reconsider and to
reopen applies and was intended to apply to aliens who depart the
country following the termination of their removal proceedings.
Therefore, the BIA did not act arbitrarily and capriciously in
applying section 1003.2(d) to Ovalles, despite the fact that the legal
basis for his removal was later determined to be erroneous and his
removal proceedings were concluded at the time he filed his motion.
Id. at 298 (footnote call omitted). Accordingly, we denied Ovalles’s petition for
review. Id. at 300.
Here, Ramon similarly urges that the BIA erred in denying his motion to
sua sponte reopen or reconsider his case based on the procedural bar of
§ 1003.2(d). However, Ramon’s situation is indistinguishable from the situation
presented in Ovalles: Ramon departed the United States following the denial of
his application for cancellation of removal and later filed an untimely petition
to reopen or reconsider his case, arguing that Lopez v. Gonzales changed the
legal basis for removal, and the BIA similarly denied Ramon’s motion to reopen
or reconsider based on the § 1003.2(d) post-departure bar. As such, Ovalles
controls our decision, and we accordingly conclude that the BIA did not err in
determining that it lacked jurisdiction to sua sponte reopen or reconsider
Ramon’s case based on the § 1003.2(d) post-departure bar.
CONCLUSION
For the foregoing reasons, the petition for review is DENIED.
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