Ramirez Matias v. Sessions

United States Court of Appeals
For the First Circuit
No. 16-2474
JUAN RAMIREZ MATIAS,
Petitioner,
v.
JEFFERSON B. SESSIONS III, Attorney General,
Respondent.
PETITION FOR REVIEW OF AN ORDER OF
THE BOARD OF IMMIGRATION APPEALS
Before
Thompson, Kayatta, and Barron,
Circuit Judges.
Jason Panzarino and The Law Office of Johanna Herrero on brief
for petitioner.
Allison Frayer, Trial Attorney, Office of Immigration
Litigation, Civil Division, Chad A. Readler, Acting Assistant
Attorney General, Civil Division, and Jessica A. Dawgert, Senior
Litigation Counsel, Office of Immigration Litigation, Civil
Division, on brief for respondent.
September 8, 2017
THOMPSON, Circuit Judge. Petitioner Juan Ramirez Matias
("Ramirez") challenges the Board of Immigration Appeals's ("BIA")
denial of his motion to exercise its sua sponte authority to reopen
his case and grant his request for cancellation of removal. We
find that even if we have jurisdiction to consider his appeal, we
must still deny Ramirez's petition.
BACKGROUND
Ramirez is no stranger to this court: in 2014, he
petitioned for review of the BIA's denial of his application for
cancellation of removal (as well as some other forms of relief
that are not relevant to this appeal). Ramirez-Matias v. Holder,
778 F.3d 322, 324 (1st Cir. 2015). Because we've laid out most of
the relevant facts once before, here we keep it brief.
Ramirez was served with a notice to appear in 2008,
alleging that he was removable because he was "[a]n alien present
in the United States who has not been admitted or paroled." See
8 U.S.C. § 1182(a)(6)(A)(i). Through counsel, he conceded the
point but applied for cancellation of removal under the Nicaraguan
Adjustment and Central American Relief Act ("NACARA"), Pub. L. No.
105-100, §§ 201-204, 111 Stat. 2160, 2196-2201 (codified as amended
in scattered sections of 8 U.S.C.).1 NACARA applicants must make
1 We note here that Ramirez has been represented at every
stage of these proceedings.
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a handful of showings by a preponderance of the evidence to be
eligible--most relevant here is that the applicant be "a person of
good moral character," 8 C.F.R. § 1240.66(b)(3)--and even then
"the applicant must . . . persuade the immigration court that he
merits a favorable exercise of its discretion." Ramirez-Matias,
778 F.3d at 325-26.
Ramirez's application was denied in 2012 after the
Immigration Judge ("IJ") found that Ramirez had not shown either.
Specifically, the IJ noted that Ramirez was arrested twice: once
in 1994 and once in 2006 for "very serious assaultive behavior
towards the mothers of his children." Both women testified that
Ramirez did not hit them, and Ramirez himself denied the
"assaultive behavior," claiming that the police lied and both
incidents were misunderstandings. But for his part, the IJ thought
it more likely that Ramirez was the one telling a lie. Ramirez
appealed, but the BIA affirmed: there was no "clear error" in the
IJ's "finding that the police reports were more reliable than his
or his witness[es] statements."
Ramirez petitioned this court for review of that
finding. Id. at 324. Because NACARA relief is a discretionary
determination, we usually do not have jurisdiction to review a BIA
order denying such relief. Id. at 326. There is an exception to
this general rule "when the claim presented to a federal court
embodies colorable constitutional claims or questions of law."
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Id. Ramirez's petition contained neither. Instead, we found his
claim boiled down to a "disagreement with the agency's view of the
relative credibility of the police reports and the testimony
proffered to contradict them. That is a factual determination
and, therefore, a determination that we have no jurisdiction to
review." Id. So, it was back to the drawing board for Ramirez.
In 2016, over a year later, Ramirez fired his next shot
at the IJ's decision, and this time he had an argument bearing the
"constitutional" label at the ready. In his "Motion to Reopen
Pursuant to this Board's Sua Sponte Authority," Ramirez argued
that his procedural-due-process rights to a fair hearing were
violated because of translation difficulties. We will get into
the details of the claim a little later, but for now here's the
gist: Ramirez and his wife, Lucia Ahilon Pablo ("Ahilon"), are
native speakers of Todos Santos Mam, but he used a Spanish
interpreter and Ahilon's interpreter spoke a different dialect of
Mam. As a result, some things, he says, were "lost in
translation." According to Ramirez's argument, the IJ's adverse
credibility finding (that is, the IJ's decision to trust the police
reports over Ramirez's story) resulted from these mistranslations,
so he should get a do-over with an interpreter who speaks Todos
Santos Mam. Ramirez conceded his motion was untimely--and he
offered no explanation for his nearly four-year delay in bringing
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these alleged hearing-level translation difficulties to the BIA's
attention. The BIA denied the motion:
The motion is untimely filed and has not been shown
to come within an exception to the time limits
imposed by law on motions to reopen or reconsider
removal proceedings. The respondent has offered no
explanation for the delay in making the due process
and other arguments now being made. Further, we do
not find that exceptional circumstances warranting
the sua sponte reopening of these proceedings have
been demonstrated. Accordingly, the untimely
motion is denied.
(citations omitted).
Undeterred, Ramirez appealed again, and so here we are
today.
ANALYSIS
Ramirez renews his mistranslation-based due-process
claim on appeal, and adds one more: the BIA abused its discretion
by failing to give a reasoned explanation of its decision not to
exercise its sua sponte authority.2 The government counters that
this court does not have jurisdiction to review either claim. We
briefly address the question of our jurisdiction, but find it's
2 If Ramirez thinks this was a motion under 8 C.F.R.
§ 1003.2(c)(2) or some other provision of the immigration laws (he
notes in his appellate brief that the "title of a motion is not
dispositive" and his motion was not directed "simply" to the BIA's
sua sponte authority) we consider the argument waived for lack of
developed argumentation--he doesn't do us (or himself) the favor
of explaining what else the motion could have been based on. See
Caldero-Guzman v. Holder, 577 F.3d 345, 349 (1st Cir. 2009).
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not as clear-cut as the government says--so, we dodge it and
explain why Ramirez still cannot prevail.
I. Jurisdiction
We start with the jurisdictional issue. Ramirez
appealed to the BIA's sua sponte authority under 8 C.F.R.
§ 1003.2(a), which provides that "[t]he Board may at any time
reopen or reconsider on its own motion any case in which it has
rendered a decision." As the government points out, we have
repeatedly held that we do not have jurisdiction to review
challenges to the BIA's failure to exercise its sua sponte
authority because such decisions are "committed to its unfettered
discretion." Luis v. INS, 196 F.3d 36, 40 (1st Cir. 1999). Because
"no judicially manageable standards are available for judging how
and when [the BIA] should exercise its discretion, . . . it is
impossible to evaluate [the] agency action for 'abuse of
discretion'" so "the very nature of the claim renders it not
subject to judicial review." Id. (quoting Heckler v. Chaney, 470
U.S. 821, 830 (1985)); see also Neves v. Holder, 613 F.3d 30, 35
(1st Cir. 2010); Caldero-Guzman, 577 F.3d at 348.
But Ramirez claims that our case law precluding our
jurisdiction over the BIA's failure to exercise its sua sponte
authority should not stop us from exercising jurisdiction in this
case. He seems to give us two reasons why. First, he claims--
without explanation--that the Supreme Court's decision in Kucana
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v. Holder, 558 U.S. 233 (2010), gives us jurisdiction to review
appeals to the BIA's sua sponte authority. His Kucana-based
argument is a non-starter: we have already rejected the contention
that Kucana, 558 U.S. at 252 n.18, in which the Supreme Court
explicitly took no position on the Courts of Appeals' practice of
declining to exercise jurisdiction over sua sponte matters, has
any impact on our no-jurisdiction rule. Neves, 613 F.3d at 35.
Ramirez gives us no reason to change course now.
Second, even if our pre-Kucana no-jurisdiction rule
still holds sway, Ramirez says we have jurisdiction by statute:
8 U.S.C. § 1252(a)(2)(D) provides that "[n]othing in . . . any
. . . provision of this chapter (other than this section) which
limits or eliminates judicial review, shall be construed as
precluding review of constitutional claims or questions of law
raised upon a petition for review filed with an appropriate court
of appeals in accordance with this section." His claims are
constitutional, he says, ergo we have jurisdiction to consider
them on the merits under § 1252(a)(2)(D).
Unlike his first argument, there might be some meat on
these bones. Our no-jurisdiction rule originated with Luis, 196
F.3d at 40, but that case was decided years before the 2005 passage
of § 1252(a)(2)(D), so the fact that we announced such a blanket
rule then does not decide whether § 1252(a)(2)(D) gives us
jurisdiction today. See REAL ID Act of 2005, 119 Stat. 231; 14A
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Arthur R. Miller, et al., Federal Practice and Procedure § 3664
(4th ed. 2008). Furthermore, we have previously identified
§ 1252(a)(2)(D) as a potential jurisdiction-restorer over
constitutional claims brought in motions for sua sponte relief.
Guerrero v. Holder, 766 F.3d 122, 126 n.12 (1st Cir. 2014) (noting
the government's contrary argument, but declining to decide the
question because the petitioner made no § 1252(a)(2)(D)-related
argument). But, we are aware of no First Circuit case--and the
parties point us to none--in which we have addressed whether
§ 1252(a)(2)(D) has any effect on Luis's no-jurisdiction rule.
Nonetheless, as Ramirez points out, the Seventh Circuit
has found that § 1252(a)(2)(D) does, indeed, give it jurisdiction
to consider legal and constitutional claims presented in appeals
to the BIA's sua sponte authority. That court reasons that "the
general 'no law to apply' principle of judicial review of
administrative action"--that is, the principle we applied in Luis
to find that we had no jurisdiction to review sua sponte matters--
"has been superseded in the immigration context by 8 U.S.C. §
1252(a)(2)[(D)]." Cevilla v. Gonzales, 446 F.3d 658, 660 (7th
Cir. 2006). In that circuit, then, appellate jurisdiction "extends
to the Board's refusal to reopen . . . removal proceedings sua
sponte" where the petitioner "raises a constitutional claim or
legal question with regard to his underlying order of removal."
Zambrano-Reyes v. Holder, 725 F.3d 744, 751 (7th Cir. 2013). Some
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other circuits agree. Nawaz v. Holder, 314 F. App'x 736, 737 (5th
Cir. 2009) (per curiam) (no jurisdiction to review sua sponte
denial, with the exception of "constitutional challenges that were
raised before the BIA"); Tamenut v. Mukasey, 521 F.3d 1000, 1005
(8th Cir. 2008) (per curiam) (same). On the other hand, in
examining its own Luis-based no-jurisdiction rule, the Sixth
Circuit has found that § 1252(a)(2)(D) creates no such
constitutional-claim toehold. Rais v. Holder, 768 F.3d 453, 464
(6th Cir. 2014); see Gor v. Holder, 607 F.3d 180, 186 (6th Cir.
2010). After all, it reasons, § 1252(a)(2)(D) only restores
jurisdiction where it was first taken away by some "other provision
of [that] chapter," so the statute "has no bearing on the question
of whether courts may review the BIA's exercise of its sua sponte
authority, for which no chapter of any legislation provides."
Rais, 768 F.3d at 464.
Although Ramirez's briefs bring this jurisdictional
point to our attention, he does not explain what we should do about
it (other than take jurisdiction to favorably decide the merits of
his appeal, of course). In fact, Ramirez's arguments do not
transcend his bald assertions that Kucana, Zambrano-Reyes, and
§ 1252(a)(2)(D) give us jurisdiction here. The government, for
its part, argues that we never have jurisdiction over appeals to
the BIA's sua sponte authority, but makes no mention of this
constitutional-claim wrinkle. But we don't have to decide what to
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do about the issue now. See Seale v. INS, 323 F.3d 150, 157 (1st
Cir. 2003) (taking a similar approach). The problems with
Ramirez's appeal are titanic, and the jurisdictional question is
just the tip of the proverbial iceberg. So, we assume the
§ 1252(a)(2)(D) exception applies and we carry on.
II. Mistranslation-Based Due-Process Claim
Ramirez is a native speaker of Todos Santos Mam, but he
elected to use a Spanish interpreter at his hearing. According to
Ramirez, he and the interpreter did not always understand each
other, so parts of his testimony were "lost in translation."3
Ramirez claims that Ahilon's testimony (Ramirez's wife and
witness) was also infected by translation errors because she is a
native speaker of Todos Santos Mam but the interpreter spoke a
different Mam dialect. Between the two, Ramirez claims that the
translation services provided at his hearing were so inadequate
3
According to his brief on appeal, Ramirez "specifically
chose to proceed with a Spanish interpreter because he had heard
and noticed mistranslations with the Mam interpreter during his
wife's testimony, and therefore decided it would be safer to
proceed in Spanish, which is not his native language." The brief
cites nothing in the record to support this contention--and the
hearing transcript reveals that Ramirez testified before his wife.
According to his affidavit, Ramirez elected to proceed in Spanish
because he believed he "was more than capable [of] speaking in
Spanish" and "knew how few people spoke Mam--particularly the Todos
Santos dialect," so "it made sense for [him] to proceed with a
Spanish interpreter." In any case, we take the gist of his
argument to be that miscommunications arose from his decision to
use a Spanish interpreter because he is not a native Spanish
speaker.
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that they violated his due-process rights. First, we present the
relevant facts and Ramirez's argument, then we give our take.
a) Background
Ramirez testified first at his hearing. His primary
mistranslation-related contention is about who he said called the
police on the night of one of his arrests. When asked by his
attorney to explain what happened, Ramirez says that he explained
in Spanish, "my mother-in-law was dead so my father-in-law called
the police, my wife was yelling in Mam and they didn't know what
was going on." Although this version of events also appears in
the transcript, he claims in his appellant brief that the audio
recording of the hearing shows that the translator mistranslated
this statement as: "my father-in-law was dead so my mother-in-
law called the police."4 In his affidavit, Ramirez gives a
different version of events, claiming that the translator erred
because "I did not state anything about my father-in-law contacting
4 We include this point here to explain the basis of Ramirez's
argument on appeal. But Ramirez did not provide us with a copy of
the recording or an alternative transcript to show that this so-
called misinterpretation occurred. It is his duty to support his
claims with record evidence. See Fed. R. App. P. 10(c), 11(a); De
Araujo v. Gonzales, 457 F.3d 146, 155 (1st Cir. 2006) (citing 8
C.F.R. § 1003.2(c)(1)); United States v. One Motor Yacht Named
Mercury, 527 F.2d 1112, 1113 (1st Cir. 1975) ("The burden is on
the appellant to provide this court with an appendix sufficient to
support its points on appeal."). Because he did not, we cannot
evaluate this part of his claim. But as we will explain, even if
we assume the events occurred as described in his brief, he still
cannot make out a due-process claim.
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the police." His appeal brief does not explain the discrepancy
between his affidavit and his argument on appeal. However, it
does point out that Ramirez later testified that he "never knew
who called the police."
Immediately after Ramirez explained (according to the
transcript and his argument to us, anyway) that his father-in-law
called the police, his Spanish-language interpreter asked to
address the Judge, then said: "Would it be okay to ask him if he
feels more comfortable in Mam than in Spanish? It may not be the
case, but I have the feeling that it could be." The interpreter
asked Ramirez, then said, "Spanish is okay." In his affidavit,
Ramirez claims that "there were also points in which the
interpreter sought to clarify some of the things I was saying in
response to the questioning--as if she were unable to understand
the Spanish that I was speaking." No such requests for
clarification appear in the transcript.
As for Ramirez's wife, Ahilon testified subsequent to
Ramirez and through a Mam interpreter. She avers in an affidavit
filed in support of Ramirez's motion that she had "difficulty
understanding the interpreter," and she thinks the interpreter had
difficulty understanding her, too. As a result "I surely expressed
to the interpreter . . . my difficulties either by asking for
repetition and/or rephrasing." According to Ramirez's brief, the
audio recording of the hearing shows that the interpreter asked
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Ahilon to repeat herself twice during her testimony. These
instances do not appear in the transcript. Neither Ramirez nor
Ahilon objected to the translations rendered at the hearing, nor
did Ramirez air this argument in his first round of appeals--as
the BIA pointed out in its order denying sua sponte relief.
Nevertheless, Ramirez now argues that these aggregated
translation difficulties violated his due-process rights. Had he
"been afforded a competent translation of his testimony as is his
due process right," he argues, "he would have been found credible
by the Immigration Judge"--meaning the IJ would have believed his
story about what happened the nights he was arrested, in lieu of
the police reports--so the IJ would have found him to be a person
of "good moral character" and granted his request for NACARA
relief. The government disagrees.
b) Mistranslation Analysis
We review Ramirez's mistranslation-based due-process
claim de novo, bearing in mind that "not every procedural misstep
or difficulty raises anything like a constitutional issue.
Procedural due process protects a right to a fundamentally fair
proceeding; but few proceedings are perfect and one can have real
errors, including ones that adversely affect a party's interests,
without automatically violating the Constitution." Teng v.
Mukasey, 516 F.3d 12, 17 (1st Cir. 2008). To prevail on a
translation-based due-process claim, allegations of translation
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difficulties are not enough; the petitioner must show that "a more
proficient or more accurate interpretation would likely have made
a dispositive difference in the outcome of the proceeding." Id.
at 17-18 (quoting Harutyunyan v. Gonzales, 421 F.3d 64, 70 (1st
Cir. 2005)); see also Chan v. Ashcroft, 93 F. App'x 247, 252-53
(1st Cir. 2004) (rejecting translation-based due-process claim
where the petitioner made no objection at the hearing, identified
no specific mistranslations, and presented no evidence that
alleged mistranslations affected outcome). Ramirez has not done
so.
Ramirez's mistranslation claim finds next to no support
in the record. Ramirez only points to one specific instance of (a
potential) mistranslation--the issue of who called the police.
But he does not explain how that translation error about a minor
detail in his story (assuming that mistranslation did, in fact,
occur) could have made a "dispositive difference in the outcome of
the proceeding." Teng, 516 F.3d at 17 (internal citations
omitted). Ramirez and Ahilon generally aver that they believe
that their translators did not always understand them, but they
point to nothing in the record to indicate that these alleged
misunderstandings had any impact on their testimony--in other
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words, they do not demonstrate that these difficulties had any
impact on the outcome, either.5
Without an outcome-influencing mistranslation, our work
here is done. In his motion to the BIA for sua sponte relief, and
in his brief to us, he contends that the IJ misweighed the evidence
and should have credited his testimony and evidence over the police
reports. But, as we have already explained to Ramirez himself in
appeal number one, that type of fact-based claim is one we cannot
review. Ramirez-Matias, 778 F.3d at 326-27.
III. Explanation Error
The mistranslation claim down, we have one to go:
Ramirez says the BIA's explanation of its refusal to exercise its
sua sponte authority was so paltry that it violated his due-process
rights. Recall, the BIA gave two reasons for denying his motion:
it said that Ramirez failed to explain his delay in offering his
translation-based due-process argument, and found that Ramirez had
not shown that exceptional circumstances warranted reopening his
case. But even if we deemed the BIA's explanation lacking in
sufficient detail (which we doubt), a petitioner, regardless,
cannot state a colorable due-process claim if he does not have a
5
Indeed, the stories presented in Ramirez and Ahilon's post-
hearing affidavits--the stories Ramirez claims the IJ should have
credited in lieu of the police reports--are the same as the stories
the parties presented to the IJ at the hearing.
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cognizable property or liberty interest at stake. Mejia-Orellana
v. Gonzales, 502 F.3d 13, 17 (1st Cir. 2007). Remember, Ramirez
appealed only to the BIA's sua sponte authority, and that relief
is purely discretionary--meaning it "does not create a cognizable
liberty interest." Id. (citing Jupiter v. Ashcroft, 396 F.3d 487,
492 (1st Cir. 2005)); see Chun Xin Chi v. Holder, 606 F.3d 6, 10
(1st Cir. 2010); Naeem v. Gonzales, 469 F.3d 33, 39 (1st Cir.
2006). Therefore, even assuming we have jurisdiction to consider
constitutional claims where a petitioner sought only sua sponte
relief before the BIA, this second jurisdictional issue is fatal
to Ramirez's explanation-based claim. See Ramirez-Matias, 778
F.3d at 326-27.
CONCLUSION
Ramirez's petition for review is denied.
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