De Araujo v. Gonzales

• Decision Date: 11 August 2006
• Docket Number: No. 05-1886.,05-1886.
• Citation: 457 F.3d 146
• Court: U.S. Court of Appeals — First Circuit
• Parties: Domingos Joao Liberal DE ARAUJO, Petitioner, v. Alberto R. GONZÁLES, Attorney General of the United States, Respondent.

457 F.3d 146

Domingos Joao Liberal DE ARAUJO, Petitioner, v. Alberto R. GONZÁLES, Attorney General of the United States, Respondent.

No. 05-1886.

United States Court of Appeals, First Circuit.

Submitted June 5, 2006.

Decided August 11, 2006.

William E. Graves, Jr., with whom Kerry E. Doyle and Graves & Doyle, on brief for petitioner.

Jeffrey M. Cohen, Assistant United States Attorney, with whom Michael J. Sullivan, United States Attorney, on brief for respondent.

Before TORRUELLA and LIPEZ, Circuit Judges, and STAFFORD,^* Senior District Judge.

TORRUELLA, Circuit Judge.

Petitioner Domingos Joao Liberal De Araujo ("De Araujo") asks us to review a decision of the Board of Immigration Appeals ("BIA") denying his motion to reopen proceedings and finding that he did not qualify for discretionary relief. De Araujo claims that the BIA denied him due process by pre-judging his application for relief under former section 212(c) of the Immigration and Nationality Act ("INA") and by refusing to reopen his immigration proceedings to allow him an opportunity to present evidence in support of his application for former section 212(c) relief. De Araujo also argues that he has not been convicted of an aggravated felony because he has not committed a crime of violence. We affirm the BIA's dismissal of De Araujo's appeal of the aggravated felony issue for his failure to file a brief with the BIA. Because we find that De Araujo's due process rights were not violated and the BIA acted properly within its discretion on his motion to reopen, we dismiss his remaining claims for lack of jurisdiction.

I.

A. De Araujo's removal proceedings

De Araujo is a native and citizen of Portugal who was lawfully admitted to the United States on September 4, 1973. He was six years old at the time. On January 6, 1992, De Araujo was convicted in Massachusetts state court of assault and battery with a dangerous weapon and was sentenced to a two-and-a-half-year term of imprisonment. See Mass. Gen. Laws ch. 265, § 15.

On April 6, 2000, the Immigration and Naturalization Service ("INS")¹ issued De Araujo a Notice to Appear, charging him with removability pursuant to INA § 237(a)(2)(A)(iii), 8 U.S.C. § 1227(a)(2)(A)(iii), for being an alien convicted of an aggravated felony.²

De Araujo failed to appear at his scheduled hearing before an Immigration Judge ("IJ") on January 4, 2001 and was subsequently ordered removed in absentia. However, on April 1, 2001, De Araujo's Massachusetts assault and battery charge was vacated. He then moved to reopen proceedings on April 2, and the IJ granted the motion on July 6.

On October 3, 2001, the INS amended the original charging document to include two additional charges of removability. The first additional charge alleged that De Araujo was removable on account of a November 7, 1995 Connecticut state conviction for assault on a Department of Corrections employee for which he received an eighteen-month sentence of imprisonment. The INS charged De Araujo with removability for the Connecticut assault under INA § 237(a)(2)(A)(ii), 8 U.S.C. § 1227(a)(2)(A)(ii), for being an alien convicted of an aggravated felony.

The second additional charge alleged that De Araujo was removable because of a January 27, 2000 Massachusetts state conviction for illegal possession of a controlled substance. It appears that De Araujo was convicted on the same day for three different drug charges which had occurred on different days. Removability for the Massachusetts controlled substance violations was charged under INA § 237(a)(2)(A)(iii), 8 U.S.C § 1227(a)(2)(A)(iii).³

At a hearing before the IJ, De Araujo argued that he was eligible for cancellation of removal under 8 U.S.C. § 1229b and for relief under former section 212(c) of the INA, 8 U.S.C. § 1182(c)⁴ (repealed 1996). The IJ found that De Araujo's Connecticut conviction for assault on a Department of Corrections employee constituted a "crime of violence" pursuant to 18 U.S.C. § 16(b) and therefore qualified as an "aggravated felony" under 8 U.S.C. § 1101(a)(43)(F), which rendered him ineligible for cancellation of removal under 8 U.S.C. § 1229b(a)(3).⁵ In addition, the IJ found that De Araujo's multiple Massachusetts drug convictions rendered him ineligible for relief under former section 212(c) because the drug convictions occurred after the passage of IIRIRA and repeal of section 212(c). The IJ ordered De Araujo removed to Portugal on February 13, 2002. The IJ noted that De Araujo had a motion pending to vacate his Massachusetts drug convictions and that, if his motion was granted, he would become eligible for relief from removal under former section 212(c).

B. De Araujo's appeal and motions to reopen proceedings with the BIA

De Araujo filed a timely notice of appeal with the BIA and on May 8, 2002 requested an extension of time to file his appellate brief. The BIA granted De Araujo's motion and set a deadline of June 21. According to De Araujo, his counsel sent the brief via Federal Express on June 20. However, the brief did not reach the BIA until June 24, and the BIA rejected the brief as untimely.⁶ On July 8, De Araujo filed a motion to accept the late-filed brief; however, that same day, the BIA dismissed the appeal for failure to file a brief. De Araujo did not appeal the dismissal to this Court but instead filed a motion to reconsider the dismissal with the BIA on July 26. The BIA denied De Araujo's motion on December 23. On January 23, 2003, De Araujo filed a motion to reopen his immigration proceedings with the BIA. The BIA denied this motion on March 7, stating that this motion was "in essence" a second motion to reconsider and therefore exceeded the numerical limits on motions to reconsider set forth in 8 C.F.R. § 1003.2(b)(2).⁷

On or about November 17, 2003, De Araujo filed a motion in Massachusetts state court to vacate his controlled substance convictions. De Araujo submitted a short affidavit in support of his motion to vacate, which indicated that he had been unable to understand the nature and effect of his pleas of guilty because of his problems with drug addiction.⁸

On November 19, a Massachusetts state court vacated De Araujo's drug convictions. The following day, De Araujo filed a request with the BIA to reopen proceedings sua sponte based on changed circumstances in his case. De Araujo argued that he should now be entitled to relief under former section 212(c) because his drug convictions had been vacated. De Araujo acknowledged that, under In re Pickering, 23 I. & N. Dec. 621 (BIA 2003), convictions vacated solely to avoid immigration consequences remain convictions for INA purposes. He also conceded that the state record was unclear as to the factual reasons for the state court's decision to vacate but argued that his affidavit regarding his addiction suggested that his pleas were not made knowingly or intelligently, and that the convictions were vacated in response to this affidavit. De Araujo requested the BIA to invoke its discretionary authority to reopen the case because of his "clear eligibility for a 212(c) hearing."

On March 22, 2004, the BIA denied the request to reopen proceedings sua sponte. The BIA found De Araujo's affidavit in support of his motion to vacate the Massachusetts convictions to be "extremely limited in nature" and stated that it would "need more information before [it] [found] that [the] reason for vacating" was sufficiently unrelated to the immigration consequences of his conviction. The BIA further found that De Araujo was "undeserving of a section 212(c) waiver in the exercise of discretion," indicating that even if it were to reopen De Araujo's case, it would not grant his request for relief. It noted that De Araujo had previously been convicted of four criminal offenses and, while three of these had been vacated, none had been vacated because De Araujo was not guilty of the crimes committed. The BIA also noted that, at the time he filed his request to the BIA to reopen proceedings sua sponte, De Araujo was incarcerated for parole violations. The BIA concluded that De Araujo's "criminal actions, and apparent inability to comply with the terms of his probation do not support the reopening of proceedings to apply for discretionary relief which we do not believe he merits in the exercise of our discretion."

C. De Araujo's petition for review

De Araujo filed a timely petition for review with this Court, claiming (1) that the 1995 Connecticut conviction for assault against a Department of Corrections employee did not constitute an aggravated felony, and (2) that the BIA abused its discretion in failing to reopen his removal proceedings and, in doing so, violated his constitutional right to due process. De Araujo v. Ashcroft, 399 F.3d 84, 88-89 (1st Cir.2005) ("De Araujo I"). On February 23, 2005, we dismissed the petition for lack of jurisdiction over either claim. Id. at 89. With regard to the first argument, we found that "[w]hether [De Araujo's] 1995 conviction . . . did or did not amount to an aggravated felony is not an issue now open for review" because that order became final on July 8, 2002, and De Araujo did not appeal that order to this court within 30 days as required by 8 U.S.C. § 1252(b)(1). Id. at 88-89. We described the 30-day filing deadline as a "strict jurisdictional bar," which precluded us from considering his first argument. Id. at 89. Regarding the second argument, we found that we lacked jurisdiction to reach De Araujo's other claims on direct review because he remained removable as an aggravated felon. Id. at 89 (citing INA § 242(a)(2)(C), 8 U.S.C. § 1252(a)(2)(C)); Emile v. INS, 244 F.3d 183, 189 (1st Cir.2001) ("Because [defendant] was convicted of an aggravated felony, we have no authority to consider on direct review any other claim once we conclude that he was legitimately so classified."); Sousa v. INS, 226 F.3d 28, 34 (1st Cir.2000) ("[H]aving determined that [the petitioner]...