Lemus v. Sessions, No. 17-2068

CourtUnited States Courts of Appeals. United States Court of Appeals (1st Circuit)
Writing for the CourtLYNCH, Circuit Judge.
Citation900 F.3d 15
Parties Laura LEMUS; Manuel M. Lemus, Petitioners, v. Jefferson B. SESSIONS, III, Attorney General, Respondent.
Docket NumberNo. 17-2068
Decision Date14 August 2018

900 F.3d 15

Laura LEMUS; Manuel M. Lemus, Petitioners,
v.
Jefferson B. SESSIONS, III, Attorney General, Respondent.

No. 17-2068

United States Court of Appeals, First Circuit.

August 14, 2018


Jeffrey B. Rubin, Todd C. Pomerleau, and Rubin Pomerleau P.C., Boston, MA, on brief for petitioners.

Elizabeth K. Fitzgerald-Sambou, Trial Attorney, Office of Immigration Litigation, Civil Division, U.S. Department of Justice, Chad A. Readler, Acting Assistant Attorney General, Civil Division, and Margaret Kuehne Taylor, Senior Litigation Counsel, on brief for respondent.

Before Torruella, Lynch, and Barron, Circuit Judges.

LYNCH, Circuit Judge.

Laura and Manuel Lemus, both natives of Guatemala, were ordered removed by an immigration judge (IJ) in 2000. The Board of Immigration Appeals (BIA) denied their appeal in 2001. Since then, the Lemuses have filed seventeen motions with the BIA to reopen or reconsider that

900 F.3d 17

removal order. Their latest motion, filed on August 29, 2017 with the BIA, claimed that there was new relief available to them and that "exceptional circumstances" should lead the BIA to reopen their removal proceedings sua sponte. The BIA was unpersuaded, and said so in a reasoned decision.

The Lemuses now petition for judicial review of the BIA's denial of their motion. We hold that the BIA did not abuse its discretion in denying the Lemuses' time- and number-barred motion to reopen. The BIA also determined that sua sponte reopening was unwarranted. We dismiss the Lemuses' challenge to that decision for lack of jurisdiction.

I.

The Lemuses—Laura, Manuel, and their three children—came to the United States from Guatemala in 1993. Their nonimmigrant tourist visas authorized a six-month stay. They overstayed.

In late 1997, Laura applied for asylum, listing each family member as a derivative applicant. Laura stated in her application that she feared she and her family would be killed if they returned to Guatemala. She said that she had been an active member of the Union Centro Nacional (UCN) party. The night of an election, armed men from the rival political party had come to Laura's home, guns drawn, searching for her and her brother. Laura and her brother escaped, but Laura's aunt (a fellow UCN member) was not so fortunate. Several years later, shortly after the Lemuses came to the United States, the UCN leader, Jorge Carpio Nicolle, was assassinated. Laura testified to this effect before an asylum officer. That officer determined that Laura's testimony was not credible. Among other issues, Laura could not describe the UCN's politics. The officer concluded that Laura had not shown that she qualified for asylum and so he referred Laura's application to the Immigration Court.

The Immigration and Naturalization Service, in June 1999, sent the Lemuses a Notice to Appear at removal proceedings. The agency charged each as subject to removal. At the hearing, in March 2000, the Lemuses conceded removability. Laura renewed her asylum request and requested statutory withholding of removal under 8 U.S.C. § 1231(b)(3). She repeated the political opinion claim from her asylum application. Like the asylum officer, the IJ found Laura's testimony not credible. He denied asylum and statutory withholding of removal, but granted the Lemuses voluntary departure.

The Lemuses appealed this decision to the BIA. They argued that the BIA should reverse the IJ for failing to find that Laura had a "well founded fear of persecution." The BIA summarily dismissed each appeal—the Lemuses did not file briefs, and the short statements in their appeal forms "fail[ed] to apprise [the BIA] of the reasons" why it should reverse the IJ.

After the BIA entered its final removal order on October 30, 2001, the Lemuses filed seventeen motions to reopen or reconsider. Among other things, they raised claims of ineffective assistance of counsel and of changed country conditions in Guatemala. The BIA denied each motion. The Lemuses filed three petitions for our review. This Court denied each petition. See Lemus v. Gonzales, 489 F.3d 399 (1st Cir. 2007) (denying the petition); Lemus, et al. v. Gonzales, No. 05-1273 (1st Cir. July 12, 2005) (dismissing the petition); Lemus v. Ashcroft, No. 03-1825 (1st Cir. Mar. 31, 2004) (summarily affirming the BIA's decision).

In this latest motion, filed on August 29, 2017 with the BIA, Laura and Manuel once again argued for reopening. This time

900 F.3d 18

there was a new ground: their daughter, Mirna, had become a U.S. citizen and filed visa petitions on their behalf. The visa petitions were accepted, so the Lemuses would have been eligible to apply to adjust their status to lawful permanent residents but for the removal order. They further argued that the BIA should reopen their cases sua sponte because of "exceptional circumstances."

The BIA denied the Lemuses' motion as untimely filed and numerically barred. The BIA noted that potential eligibility for adjustment of status is...

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4 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
    ...request that the BIA reopen them sua sponte, i.e., "on its own motion" (nomenclature that we admit is confusing). See Lemus v. Sessions, 900 F.3d 15, 18 (1st Cir. 2018) (citing 8 C.F.R § 1003.2(a) ); Bonilla v. Lynch, 840 F.3d 575, 585 (9th Cir. 2016). The BIA will only grant a motion sua s......
  • Gyamfi v. Whitaker, No. 18-1093
    • United States
    • United States Courts of Appeals. United States Court of Appeals (1st Circuit)
    • January 10, 2019
    ...on this case is misplaced. Garcia was decided before Congress enacted time and number bars on motions to reopen, Lemus v. Sessions, 900 F.3d 15, 19 (1st Cir. 2018) (citing Dada v. Mukasey, 554 U.S. 1, 13, 128 S.Ct. 2307, 171 L.Ed.2d 178 (2008) (outlining that history) ), and what's more, th......
  • United States v. Gierbolini-Rivera, No. 15-2076
    • United States
    • United States Courts of Appeals. United States Court of Appeals (1st Circuit)
    • August 14, 2018
    ...the totality of the circumstances." United States v. Ruiz-Huertas, 792 F.3d 223, 226 (1st Cir. 2015). Gierbolini, however, did not object 900 F.3d 15below. In such cases, it is unclear whether the abuse of discretion standard or the plain error standard applies. Id. at 228. We need not deci......
  • Gomes v. Smith, Civil Action No. 18-cv-12284-NMG
    • United States
    • United States District Courts. 1st Circuit. United States District Courts. 1st Circuit. District of Massachusetts
    • May 23, 2019
    ...of removal, 8 U.S.C. § 1229b(a), is discretionary and thus does not create a cognizable liberty interest); see also Lemus v. Sessions, 900 F.3d 15, 18–19 (1st Cir. 2018) (holding that the BIA's exercise of its "purely discretionary" sua sponte authority not to reopen removal proceedings "do......
4 cases
  • Thompson v. Barr, No. 18-1823
    • United States
    • United States Courts of Appeals. United States Court of Appeals (1st Circuit)
    • May 21, 2020
    ...request that the BIA reopen them sua sponte, i.e., "on its own motion" (nomenclature that we admit is confusing). See Lemus v. Sessions, 900 F.3d 15, 18 (1st Cir. 2018) (citing 8 C.F.R § 1003.2(a) ); Bonilla v. Lynch, 840 F.3d 575, 585 (9th Cir. 2016). The BIA will only grant a motion sua s......
  • Gyamfi v. Whitaker, No. 18-1093
    • United States
    • United States Courts of Appeals. United States Court of Appeals (1st Circuit)
    • January 10, 2019
    ...on this case is misplaced. Garcia was decided before Congress enacted time and number bars on motions to reopen, Lemus v. Sessions, 900 F.3d 15, 19 (1st Cir. 2018) (citing Dada v. Mukasey, 554 U.S. 1, 13, 128 S.Ct. 2307, 171 L.Ed.2d 178 (2008) (outlining that history) ), and what's more, th......
  • United States v. Gierbolini-Rivera, No. 15-2076
    • United States
    • United States Courts of Appeals. United States Court of Appeals (1st Circuit)
    • August 14, 2018
    ...the totality of the circumstances." United States v. Ruiz-Huertas, 792 F.3d 223, 226 (1st Cir. 2015). Gierbolini, however, did not object 900 F.3d 15below. In such cases, it is unclear whether the abuse of discretion standard or the plain error standard applies. Id. at 228. We need not deci......
  • Gomes v. Smith, Civil Action No. 18-cv-12284-NMG
    • United States
    • United States District Courts. 1st Circuit. United States District Courts. 1st Circuit. District of Massachusetts
    • May 23, 2019
    ...of removal, 8 U.S.C. § 1229b(a), is discretionary and thus does not create a cognizable liberty interest); see also Lemus v. Sessions, 900 F.3d 15, 18–19 (1st Cir. 2018) (holding that the BIA's exercise of its "purely discretionary" sua sponte authority not to reopen removal proceedings "do......

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