Ortiz v. Holder

11-5156
Ortiz v. Holder
BIA
A044 476 510
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.
1 At a stated term of the United States Court of Appeals
2 for the Second Circuit, held at the Thurgood Marshall United
3 States Courthouse, 40 Foley Square, in the City of New York,
4 on the 16th day of April, two thousand thirteen.
5
6 PRESENT:
7 ROBERT A. KATZMANN,
8 RICHARD C. WESLEY,
9 GERARD E. LYNCH,
10 Circuit Judges.
11
12 _____________________________________
13
14 TEOFILO ORTIZ, A.K.A. GILBERTO ORTIZ,
15 Petitioner,
16
17 v. 11-5156
18 NAC
19 ERIC H. HOLDER, JR., UNITED STATES
20 ATTORNEY GENERAL,
21 Respondent.
22 _____________________________________
23
24 FOR PETITIONER: Alexander Arandia, Forest Hills, New
25 York.
26
27 FOR RESPONDENT: Stuart F. Delery, Assistant Attorney
28 General; Allen W. Hausman, Senior
29 Litigation Counsel; Sharon M. Clay,
30 Trial Attorney, Office of Immigration
31 Litigation, United States Department of
32 Justice, Washington, D.C.
1 UPON DUE CONSIDERATION of this petition for review of a
2 Board of Immigration Appeals (“BIA”) decision, it is hereby
3 ORDERED, ADJUDGED, AND DECREED that the petition for review is
4 DISMISSED.
5 Petitioner Teofilo Ortiz, a native and citizen of the
6 Dominican Republic, seeks review of a November 15, 2011, order
7 of the BIA denying his motion to reopen and reconsider.
8 In re Teofilo Ortiz, No. A044 476 510 (B.I.A. Nov. 15, 2011).
9 We assume the parties’ familiarity with the underlying facts
10 and procedural history of the case.
11 We lack jurisdiction to review a final order of removal,
12 including an order denying a motion to reopen and reconsider,
13 issued against an alien, such as Ortiz, who was ordered
14 removed by reason of having committed an offense related to a
15 controlled substance. See 8 U.S.C. § 1252(a)(2)(C); see also
16 Santos-Salazar v. U.S. Dep’t of Justice, 400 F.3d 99, 102-03
17 (2d Cir. 2005); Durant v. INS, 393 F.3d 113, 115 (2d Cir.
18 2004). However, we retain jurisdiction to review colorable
19 constitutional claims and questions of law. See 8 U.S.C.
20 § 1252(a)(2)(D). Ortiz raises no colorable constitutional
21 claims or questions of law in challenging the BIA’s denial of
22 his motion. See Barco-Sandoval v. Gonzales, 516 F.3d 35, 40
23 (2d Cir. 2008).
2
1 It is undisputed that Ortiz’s 2011 motion, filed eight
2 years after the agency’s removal order became final, was
3 untimely. See 8 U.S.C. § 1229a(c)(6), (7). Because the
4 untimely filing of Ortiz’s motion was not excused by any
5 statutory exception, see 8 U.S.C. § 1229a(c)(7)(C)(ii)-(iv),
6 his motion “could only be considered upon exercise of the
7 Agency’s sua sponte authority.” Mahmood v. Holder, 570 F.3d
8 466, 469 (2d Cir. 2009); see also 8 C.F.R. § 1003.2(a). Such
9 a decision is “entirely discretionary” and beyond the scope of
10 our review. Ali v. Gonzales, 448 F.3d 515, 518 (2d Cir.
11 2006). Nevertheless, “where the Agency may have declined to
12 exercise its sua sponte authority because it misperceived the
13 legal background and thought, incorrectly, that a reopening
14 would necessarily fail, remand to the Agency for
15 reconsideration in view of the correct law is appropriate.”
16 Mahmood, 570 F.3d at 469; see also Aslam v. Mukasey, 537 F.3d
17 110, 115 (2d Cir. 2008); 8 U.S.C. § 1252(a)(2)(D).
18 Here, there is no indication that the BIA misperceived
19 the law in declining to reopen or reconsider. Indeed, as the
20 BIA noted, contrary to Ortiz’s argument, the Supreme Court’s
21 decision in Lopez v. Gonzales, 549 U.S. 47 (2006), had no
22 bearing on Ortiz’s inadmissibility. While Lopez addressed the
23 issue of when a state conviction constitutes an aggravated
3
1 felony under the Immigration and Nationality Act, see id. at
2 53, 60, Ortiz was charged as subject to removal as an alien
3 convicted of a law relating to a controlled substance, not an
4 aggravated felony.
5 We decline to consider Ortiz’s arguments regarding the
6 departure bar, as the BIA did not apply that bar in his case.
7 See Lin Zhong v. U.S. Dep’t of Justice, 480 F.3d 104, 122 (2d
8 Cir. 2007).
9 For the foregoing reasons, the petition for review is
10 DISMISSED. Ortiz’s pending request for oral argument is
11 DENIED in accordance with Federal Rule of Appellate Procedure
12 34(a)(2), and Second Circuit Local Rule 34(b).
13 FOR THE COURT:
14 Catherine O’Hagan Wolfe, Clerk
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