Guerrero v. Holder, No. 13–1131.

CourtUnited States Courts of Appeals. United States Court of Appeals (1st Circuit)
Writing for the CourtTHOMPSON
Citation766 F.3d 122
PartiesJose Maria GUERRERO, Petitioner, v. Eric H. HOLDER, Jr., United States Attorney General, Respondent.
Decision Date09 September 2014
Docket NumberNo. 13–1131.

766 F.3d 122

Jose Maria GUERRERO, Petitioner,
v.
Eric H. HOLDER, Jr., United States Attorney General, Respondent.

No. 13–1131.

United States Court of Appeals,
First Circuit.

Sept. 9, 2014.


[766 F.3d 123]


Martin D. Harris, on brief for petitioner.

Jennifer P. Levings, Senior Litigation Counsel, U.S. Department of Justice, Civil Division, Office of Immigration Litigation, Stuart F. Delery, Assistant Attorney General, Civil Division, and Shelley R. Goad, Assistant Director, Office of Immigration Litigation, on brief for respondent.


Before HOWARD and THOMPSON, Circuit Judges, LAPLANTE, District Judge. *

THOMPSON, Circuit Judge.

The petitioner, Jose Maria Guerrero, is a native and citizen of the Dominican Republic. He seeks review of a final order of the Board of Immigration Appeals (“BIA”), dated December 27, 2012, vacating a prior decision to reopen proceedings, and reinstating a prior order of deportation. Because the BIA acted pursuant to its discretionary sua sponte authority, we lack jurisdiction to review the petition.

I. BACKGROUND

We relate only the necessary factual and procedural background to provide context for our decision.

A. Initial Deportation Proceedings

Guerrero was admitted to the United States on May 8, 1986, as a lawful permanent resident. On May 13, 1991, he was convicted of criminal possession of a controlled substance in violation of New York law. By virtue of this conviction, the former Immigration and Naturalization Service (“INS”) 1 commenced deportation proceedings against Guerrero in September 1995, filing an Order to Show Cause (“OSC”) with the immigration court. The INS charged Guerrero with deportability under § 241(a)(2)(B)(i) of the Immigration and Nationality Act (“INA”),

[766 F.3d 124]

8 U.S.C. § 1251(a)(2)(B)(i),2 as an alien convicted of violating a controlled substance law, and submitted the conviction record as evidence. Appearing with counsel before an immigration judge (“IJ”) on April 16, 1996, Guerrero (through written pleadings) admitted the OSC's factual allegations, and conceded his deportability as charged. As relief from deportation, however, Guerrero sought a waiver of inadmissibility under former INA § 212(c). See8 U.S.C. § 1182(c), repealed by Illegal Immigration Reform and Immigrant Responsibility Act of 1996, Pub.L. No. 104–208, Title III, § 304(b), 110 Stat. 3009, 3009–597.3 At a later hearing on March 11, 1997, the IJ gave Guerrero the opportunity to withdraw his pleadings admitting the OSC's allegations and conceding deportability, and to contest deportability. When he declined, the IJ ruled that Guerrero's admissions and concession of deportability, along with the evidence on the record, sustained the charge of deportability. The IJ then pretermitted Guerrero's application for § 212(c) relief—finding the Antiterrorism and Effective Death Penalty Act of 1996, Pub.L. No. 104–132, 110 Stat. 1214 (“AEDPA”), precluded § 212(c) relief “for all aliens deportable by reason of having committed any [controlled substance] offenses”—and ordered his deportation.

Guerrero appealed the IJ's decision to the BIA on April 8, 1997. On February 28, 2000, while the appeal was still pending before the BIA, Guerrero pled nolo contendere in Rhode Island state court to a charge of manufacturing/ delivering a schedule I/II controlled substance (cocaine), for which he received a deferred sentence of five years.4 On July 31, 2000, the BIA (unaware of the Rhode Island conviction) sustained Guerrero's appeal of the IJ's March 11, 1997 decision because the AEDPA restrictions the IJ relied on did not apply retroactively to proceedings commenced on or before April 24, 1996, and Guerrero's proceedings had commenced when he was served with the OSC on September 15, 1995. It remanded the record back to the IJ to allow Guerrero the opportunity to apply for § 212(c) relief.

On September 7, 2000, during a hearing on remand, INS orally amended the OSC to reflect the Rhode Island conviction. According to the INS, Guerrero was now also subject to deportation under former INA § 241(a)(2)(A)(iii), 8 U.S.C. § 1251(a)(2)(A)(iii),5 as an alien who, at any time after admission, is convicted of an aggravated felony. The IJ, finding the Rhode Island conviction qualified as an aggravated felony, again pretermitted Guerrero's claim for § 212(c) relief on September 10, 2001, and ordered him “removed and deported to the Dominican Republic on the two charges lodged against him.” 6 Guerrero timely appealed to the BIA. And on January 23, 2002, the BIA affirmed the IJ's September 10, 2001 decision, agreeing that Guerrero's Rhode Island conviction precluded him from

[766 F.3d 125]

§ 212(c) relief. Guerrero was physically removed from the United States to the Dominican Republic on September 18, 2002.

B. Reopening of Proceedings

On January 11, 2006, Guerrero entered the United States, without inspection or admission. More than a year later, on June 22, 2007, he filed an untimely motion with the BIA to reopen his proceedings.7 Guerrero contended that reopening was warranted because his Rhode Island conviction had been vacated, and he submitted the May 30, 2002 Rhode Island state court order vacating said conviction. INS did not respond to this motion. The BIA denied the motion to reopen on July 23, 2007, explaining Guerrero's Rhode Island conviction remained final for immigration purposes because it was “unable to ascertain whether the [Rhode Island state] court's action was taken pursuant to a rehabilitative statute or to ameliorate the immigration consequences of [Guerrero]'s conviction.”

On March 17, 2008, Guerrero filed an untimely motion to reconsider the BIA's July 23, 2007 decision.8 Reiterating that a conviction no longer existed to support his deportability under the then-existing § 241(a)(2)(A)(iii) as an alien convicted of an aggravated felony, and that he was thus not barred from being considered for a § 212(c) waiver of inadmissibility, Guerrero submitted documentation evidencing that the criminal...

To continue reading

Request your trial
7 practice notes
  • Thompson v. Barr, No. 18-1823
    • United States
    • United States Courts of Appeals. United States Court of Appeals (1st Circuit)
    • May 21, 2020
    ...comports with the time and number requirements is subject to judicial review under the standard laid out above. See Guerrero v. Holder, 766 F.3d 122, 126 (1st Cir. 2014).When a motion falls outside of the timing and number restrictions imposed by IIRIRA and does not fit into one of the stat......
  • United States v. Tiru-Plaza, No. 13–1888.
    • United States
    • United States Courts of Appeals. United States Court of Appeals (1st Circuit)
    • September 9, 2014
    ...suspicion is ultimately a pragmatic inquiry—one that “must be based on commonsense judgments and inferences about human behavior.” [766 F.3d 122]Illinois v. Wardlow, 528 U.S. 119, 125, 120 S.Ct. 673, 145 L.Ed.2d 570 (2000). Assessing the totality of the circumstances in this case, the offic......
  • Gyamfi v. Whitaker, No. 18-1093
    • United States
    • United States Courts of Appeals. United States Court of Appeals (1st Circuit)
    • January 10, 2019
    ...jurisdiction-restorer over constitutional claims brought in motions for sua sponte relief." Id. at 68-69 (citing Guerrero v. Holder, 766 F.3d 122, 126 n.12 (1st Cir. 2014) ). However, "whether § 1252(a)(2)(D) has any effect on Luis's no-jurisdiction rule," as noted, remains a......
  • Matias v. Sessions, No. 16-2474.
    • United States
    • United States Courts of Appeals. United States Court of Appeals (1st Circuit)
    • September 8, 2017
    ...as a potential jurisdiction-restorer over constitutional claims 871 F.3d 69brought 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 petitioner made no § 1......
  • Request a trial to view additional results
7 cases
  • Thompson v. Barr, No. 18-1823
    • United States
    • United States Courts of Appeals. United States Court of Appeals (1st Circuit)
    • May 21, 2020
    ...comports with the time and number requirements is subject to judicial review under the standard laid out above. See Guerrero v. Holder, 766 F.3d 122, 126 (1st Cir. 2014).When a motion falls outside of the timing and number restrictions imposed by IIRIRA and does not fit into one of the stat......
  • United States v. Tiru-Plaza, No. 13–1888.
    • United States
    • United States Courts of Appeals. United States Court of Appeals (1st Circuit)
    • September 9, 2014
    ...suspicion is ultimately a pragmatic inquiry—one that “must be based on commonsense judgments and inferences about human behavior.” [766 F.3d 122]Illinois v. Wardlow, 528 U.S. 119, 125, 120 S.Ct. 673, 145 L.Ed.2d 570 (2000). Assessing the totality of the circumstances in this case, the offic......
  • Gyamfi v. Whitaker, No. 18-1093
    • United States
    • United States Courts of Appeals. United States Court of Appeals (1st Circuit)
    • January 10, 2019
    ...jurisdiction-restorer over constitutional claims brought in motions for sua sponte relief." Id. at 68-69 (citing Guerrero v. Holder, 766 F.3d 122, 126 n.12 (1st Cir. 2014) ). However, "whether § 1252(a)(2)(D) has any effect on Luis's no-jurisdiction rule," as noted, remains a......
  • Matias v. Sessions, No. 16-2474.
    • United States
    • United States Courts of Appeals. United States Court of Appeals (1st Circuit)
    • September 8, 2017
    ...as a potential jurisdiction-restorer over constitutional claims 871 F.3d 69brought 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 petitioner made no § 1......
  • Request a trial to view additional results

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT