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Reyes v. Sessions

United States Court of Appeals, First Circuit

March 29, 2018

JULIO H. REYES, Petitioner,
v.
JEFFERSON B. SESSIONS, III, ATTORNEY GENERAL, Respondent.

          PETITION FOR REVIEW OF AN ORDER OF THE BOARD OF IMMIGRATION APPEALS

          Jonathan Ng, with whom Robert Ley and Law Office of Johanna Herrero were on brief, for petitioner.

          Yedidya Cohen, Trial Attorney, Office of Immigration Litigation, Civil Division, U.S. Department of Justice, with whom Chad A. Readler, Acting Assistant Attorney General, and Anthony C. Payne, Assistant Director, Office of Immigration Litigation, were on brief, for respondent.

          Before Lynch, Stahl, and Kayatta, Circuit Judges.

          LYNCH, CIRCUIT JUDGE.

         Julio H. Reyes challenges the Board of Immigration Appeals' ("BIA") denial of his motion to reopen for being untimely and its decision not to reopen sua sponte. The BIA found that Reyes had submitted his motion to reopen long after the ninety-day limit and did not show that he fit within an exception to that limit, and did not even attempt to argue to the BIA that he did. The BIA did not abuse its discretion, so we deny that portion of his petition. The BIA also determined that sua sponte reopening was unwarranted. We dismiss Reyes's challenge of that decision for lack of jurisdiction.

         I.

         Reyes, a native and citizen of El Salvador, entered the United States in 1987 without being admitted or paroled after inspection by an immigration officer. Between 1991 and 2011, Reyes was arraigned on twenty-six different criminal charges. These charges included: assault and battery with a dangerous weapon in 1991; disorderly conduct in 1992; assault and battery in 1993; receiving stolen property in 1993; violation of a restraining order and threatening to commit a crime in 1996, for an altercation involving a woman he said was his girlfriend at the time; buying or receiving a stolen motor vehicle in 1997; assault and battery on a police officer and resisting arrest in 1998; operating a vehicle under the influence of alcohol and leaving the scene of an accident in 2001; assault and battery with a dangerous weapon and threatening to commit a crime in 2003, for allegedly beating his girlfriend; intimidation of a witness in 2003, for allegedly preventing his girlfriend from testifying regarding the 2003 assault and battery charge; assault and battery in 2008, for allegedly hitting a woman he was dating and who is the mother of his children; possessing an open container of alcohol in a motor vehicle in 2009; and assault and battery in 2011, again for allegedly beating the mother of his children.

         At least two of the charges against Reyes led to convictions. In 1993, Reyes was convicted of assault and battery, in violation of Mass. Gen. Laws ch. 265 § 13A. In 1997, he pleaded guilty to buying or receiving a stolen motor vehicle, in violation of Mass. Gen. Laws ch. 266 § 28.

         In 2007, the Department of Homeland Security initiated removal proceedings against Reyes, charging that Reyes was present in the United States without being admitted or inspected. Reyes conceded that he was removable and applied for special rule cancellation of removal under the Nicaraguan Adjustment and Central American Relief Act of 1997 ("NACARA"), which provides the Attorney General discretion to cancel removal if certain conditions are met.[1] 8 C.F.R. § 1240.66(b). At a hearing before the Immigration Judge ("IJ"), Reyes testified that returning to El Salvador would create a hardship because he had negative memories from El Salvador's civil war, he would not be able to find employment there, he financially supported his three United States citizen children, and he provided care to his mother, who lives in the United States.

         The IJ, for multiple separate reasons, denied Reyes's application and ordered him removed. First, the IJ determined that Reyes's 1997 conviction for receiving a stolen vehicle was a crime involving moral turpitude and, as a result, applied the heightened standard that Reyes must show his removal would result in "exceptional and extremely unusual" hardship. The IJ found that Reyes did not satisfy that standard because the hardship Reyes had identified was not "substantially different from, or beyond, that which would normally be expected from the deportation of an alien with close family members here." Second, the IJ determined that Reyes had failed to show that he had been of good moral character during his time in the United States. Third, and independently, the IJ denied Reyes's motion as a matter of discretion because Reyes had been arraigned on twenty-six criminal charges during his time in the United States. The IJ stated that "[s]uch a criminal record is sufficient to . . . determine that [Reyes] would not warrant a favorable exercise of discretion."

         The BIA affirmed on October 9, 2012. It agreed with the IJ that Reyes had failed to show that his removal would result in exceptional and extremely unusual hardship. It separately concluded that the IJ was correct to deny cancellation of removal as a matter of discretion "[f]or the reasons thoroughly discussed by the [IJ]." The BIA did not reach the good moral character issue. Reyes did not move to reopen within the ninety-day period.

         Despite the 2012 final order of removal, Reyes remained in the United States. On February 23, 2017, Reyes filed a motion to reopen and an accompanying emergency stay of removal. His motion to reopen alleged that, on January 9, 2017, Reyes's 1993 conviction for assault and battery was vacated on the grounds that his counsel at the time had failed to warn him of the immigration consequences of pleading guilty and that he had not been provided an interpreter. Based on that vacatur, Reyes argued that he could now meet the requirements for special rule cancellation of removal under NACARA. At no point did Reyes, who was represented by counsel, attempt to justify the years-long delay between the final order of removal and his effort to vacate his prior conviction.

         DHS responded on March 7, 2017, asserting that the vacatur did not change any facet of the IJ's and BIA's analyses. In its discussion of the NACARA hardship standard, DHS pointed out that the application of the heightened standard under NACARA was based on Reyes's 1997 conviction for buying or ...


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