JULIO H. REYES, Petitioner,
JEFFERSON B. SESSIONS, III, ATTORNEY GENERAL, Respondent.
PETITION FOR REVIEW OF AN ORDER OF THE BOARD OF IMMIGRATION
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.
Lynch, Stahl, and Kayatta, Circuit Judges.
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
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
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.
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. 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.
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."
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.
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.
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 ...