Matias v. Sessions

• Decision Date: 08 September 2017
• Docket Number: No. 16-2474.,16-2474.
• Citation: 871 F.3d 65
• Parties: Juan Ramirez MATIAS, Petitioner, v. Jefferson B. SESSIONS III, Attorney General, Respondent.
• Court: U.S. Court of Appeals — First Circuit

871 F.3d 65

Juan Ramirez MATIAS, Petitioner,
v.
Jefferson B. SESSIONS III, Attorney General, Respondent.

No. 16-2474.

United States Court of Appeals, First Circuit.

September 8, 2017

Jason Panzarino and The Law Office of Johanna Herrero, Boston, MA, 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.

Before Thompson, Kayatta, and Barron, Circuit Judges.

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 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

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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." 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 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

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that this court does not have jurisdiction to review either claim. We briefly address the question of our jurisdiction, but find it's 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, 105 S.Ct. 1649, 84 L.Ed.2d 714 (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 v. Holder, 558 U.S. 233, 130 S.Ct. 827, 175 L.Ed.2d 694 (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, 130 S.Ct. 827, 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 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

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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...