Luis v. Immigration & Naturalization Serv., No. 99-1369

CourtUnited States Courts of Appeals. United States Court of Appeals (1st Circuit)
Writing for the CourtBefore Torruella, Chief Judge, Bownes, Senior Circuit Judge, and Lynch; BOWNES
Citation196 F.3d 36
Docket NumberNo. 99-1369
Decision Date05 October 1999
Parties(1st Cir. 1999) MARIA DULCE PENA LUIS, Petitioner, v. IMMIGRATION AND NATURALIZATION SERVICE, Respondent. Heard

Page 36

196 F.3d 36 (1st Cir. 1999)
MARIA DULCE PENA LUIS, Petitioner,
v.
IMMIGRATION AND NATURALIZATION SERVICE, Respondent.
No. 99-1369
United States Court of Appeals for the First Circuit
Heard October 5, 1999
Decided November 8, 1999

Page 37

Copyrighted Material Omitted

Page 38

Alan M. Tow, with whom Nancy B. Norman was on brief for petitioner.

Nelda C. Reyna, Attorney, with whom David W. Ogden, Acting Assistant Attorney General, Civil Division, David V. Bernal, Assistant Director, Office of Immigration Litigation, U.S. Department of Justice, were on brief for respondent.

Before Torruella, Chief Judge, Bownes, Senior Circuit Judge, and Lynch, Circuit Judge.

BOWNES, Senior Circuit Judge.

Petitioner, Maria Dulce Pena Luis ("Luis"), seeks judicial review of what is essentially the final administrative decision regarding deportation in this case. This case comes before us in a tortured procedural posture. After an adverse ruling at her deportation hearing, Luis appealed the decision and filed a motion to remand the case to the Immigration Judge ("IJ") so that she could apply for adjustment of status. The appeal was dismissed and the motion to remand was denied. Luis then moved to reopen the proceedings. Failing at that, she moved to reconsider that denial. The Board of Immigration Appeals ("BIA") denied Luis's motion to reconsider on the undisputed ground that is was untimely. It is this decision from which she now appeals.

Luis claims that the BIA abused its discretion in denying the motion to reconsider and that it failed to follow its own procedures in reviewing such a motion. Luis further claims that the BIA's refusal to consider the motion to reconsider on the merits amounted to a denial of due process. For reasons stated below, we dismiss her petition.

I. BACKGROUND

Luis, a native and citizen of Portugal, entered the United States on May 6, 1988. She was admitted as a nonimmigrant visitor and was only authorized to remain in this country until November 5, 1988. She remained in the United States beyond that date without authorization from the Immigration and Naturalization Service ("INS").

Without the requisite authorization from the INS, Luis was employed by the Sweetheart Cup Company. Luis admitted that she paid someone to provide her with a fraudulent green card, which had her name and picture, as well as a false social security card. She knew that the cards were fraudulent and she had no right to use them, but admitted that she used those cards to secure employment.

On March 22, 1994, the INS issued an Order to Show Cause why Luis should not be deported. At a hearing before an IJ, Luis sought either termination of the deportation proceedings or voluntary departure in lieu of deportation. The IJ found Luis subject to deportation on the ground that she remained in the United States longer than she was permitted in violation of Section 241(a)(1)(B) of the Immigration and Nationality Act ("INA"), as amended. The IJ also denied Luis's application for voluntary departure, as a matter of discretion, on the ground that she had engaged in unauthorized employment which she obtained by using fraudulent documentation.

Luis appealed the IJ's decision to the BIA. While the appeal was pending, Luis's husband became the beneficiary of a labor certification petition and was able to adjust his status, and that of their two children, to that of lawful permanent residents.1 Thereupon, Luis filed a motion with the BIA to remand her case to the IJ to allow her to apply for adjustment of status. The BIA dismissed her appeal and denied her motion to remand.2 In dismissing the appeal,

Page 39

the BIA found that, as a matter of discretion, Luis was not eligible for voluntary departure. Finding that Luis's motion to remand was "not accompanied by an application for adjustment of status or an approved visa petition[,]" the BIA denied her motion.

On April 11, 1997, Luis filed a motion with the BIA to reopen her case so that she could apply for adjustment of status. Included with that motion to reopen was Luis's application for adjustment of status. The BIA noted that Luis admitted to unauthorized employment in the United States and using a fraudulent green card and social security card. The BIA determined, based on those admissions, and in exercise of discretion, that Luis "[did] not merit a reopening of her deportation proceedings to adjust her status." The BIA further noted that Luis lived in the United States for nine years with her lawful permanent resident husband and children. The BIA balanced those factors and ultimately denied the motion to reopen, finding that "the respondent's equities are outweighed by [the] adverse factors."

On January 14, 1998, Luis filed a motion to reconsider the denial of the motion to reopen. This is the matter before us. She noted that her husband and children were able to adjust their status to that of lawful permanent residents and stressed the importance of family unity. The BIA denied the motion to reconsider because it was untimely filed. The BIA did not reach a decision on the merits of the motion to reconsider. This petition for review followed. Luis argues that the BIA abused its discretion when it denied, as untimely, her motion to reconsider. She claims that the BIA "departed from established procedures and acted inconsistently" when it did not act sua sponte to review the case, and that this amounts to a denial of due process.

II. ANALYSIS

Luis's deportation proceedings commenced prior to April 1, 1997, and her final order of deportation was issued after October 31, 1996. As such, jurisdiction over this petition is governed by section 106(a) of the INA, 8 U.S.C. § 1105a(a), as amended by the...

To continue reading

Request your trial
49 practice notes
  • Evangelical Lutheran Church in America v. Immigration and Naturalization Service, Civil Action 02-01297 (HHK) (D. D.C. 10/30/2003), Civil Action 02-01297 (HHK).
    • United States
    • United States District Courts. United States District Court (Columbia)
    • October 30, 2003
    ..."exceptional circumstances" is a matter shielded from judicial review); Ekimian v. INS, 303 F.3d 1153 (9th Cir. 2002) (same); Luis v. INS, 196 F.3d 36, 40-41 (1st Cir. 1999) To begin, the court is skeptical of defendants' claim that the term "extraordinary circumstances" is so vague as to b......
  • Sheikh v. United States Dep't Of Homeland Sec., No. CV 09-5330 SVW (RCx).
    • United States
    • United States District Courts. 9th Circuit. United States District Courts. 9th Circuit. Central District of California
    • December 15, 2009
    ...statutory. Several other circuits have also applied section 701(a)(2) to nonstatutory grants of agency discretion. See e.g., Luis v. INS, 196 F.3d 36, 41 (1st Cir.1999) (applying section 701(a)(2) to the BIA's decision not to reconsider sua sponte its denial of a motion to reopen deportatio......
  • Pilica v. Ashcroft, No. 02-4348.
    • United States
    • United States Courts of Appeals. United States Court of Appeals (6th Circuit)
    • November 15, 2004
    ...request for relief under one of the enumerated sections.4 Page 947 E.g., Mickeviciute v. INS, 327 F.3d 1159 (10th Cir.2003); Luis v. INS, 196 F.3d 36 (1st Cir.1999); Stewart v. INS, 181 F.3d 587 (4th Cir.1999); Arrozal v. INS, 159 F.3d 429 (9th Cir.1998). The transitional rule has slightly ......
  • Zetino v. Holder, No. 08-70390.
    • United States
    • United States Courts of Appeals. United States Court of Appeals (9th Circuit)
    • February 18, 2010
    ...denials of motions to reopen sua sponte on account of Heckler do so on the basis of standardless regulations. See, e.g., Luis v. INS, 196 F.3d 36, 40 (1st Cir.1999); Ali v. Gonzales, 448 F.3d 515, 518 (2d Cir. 2006); Calle-Vujiles v. Ashcroft, 320 F.3d 472, 474-75 (3d Cir.2003); Doh v. Gonz......
  • Request a trial to view additional results
49 cases
  • Evangelical Lutheran Church in America v. Immigration and Naturalization Service, Civil Action 02-01297 (HHK) (D. D.C. 10/30/2003), Civil Action 02-01297 (HHK).
    • United States
    • United States District Courts. United States District Court (Columbia)
    • October 30, 2003
    ..."exceptional circumstances" is a matter shielded from judicial review); Ekimian v. INS, 303 F.3d 1153 (9th Cir. 2002) (same); Luis v. INS, 196 F.3d 36, 40-41 (1st Cir. 1999) To begin, the court is skeptical of defendants' claim that the term "extraordinary circumstances" is so vague as to b......
  • Sheikh v. United States Dep't Of Homeland Sec., No. CV 09-5330 SVW (RCx).
    • United States
    • United States District Courts. 9th Circuit. United States District Courts. 9th Circuit. Central District of California
    • December 15, 2009
    ...statutory. Several other circuits have also applied section 701(a)(2) to nonstatutory grants of agency discretion. See e.g., Luis v. INS, 196 F.3d 36, 41 (1st Cir.1999) (applying section 701(a)(2) to the BIA's decision not to reconsider sua sponte its denial of a motion to reopen deportatio......
  • Pilica v. Ashcroft, No. 02-4348.
    • United States
    • United States Courts of Appeals. United States Court of Appeals (6th Circuit)
    • November 15, 2004
    ...request for relief under one of the enumerated sections.4 Page 947 E.g., Mickeviciute v. INS, 327 F.3d 1159 (10th Cir.2003); Luis v. INS, 196 F.3d 36 (1st Cir.1999); Stewart v. INS, 181 F.3d 587 (4th Cir.1999); Arrozal v. INS, 159 F.3d 429 (9th Cir.1998). The transitional rule has slightly ......
  • Zetino v. Holder, No. 08-70390.
    • United States
    • United States Courts of Appeals. United States Court of Appeals (9th Circuit)
    • February 18, 2010
    ...denials of motions to reopen sua sponte on account of Heckler do so on the basis of standardless regulations. See, e.g., Luis v. INS, 196 F.3d 36, 40 (1st Cir.1999); Ali v. Gonzales, 448 F.3d 515, 518 (2d Cir. 2006); Calle-Vujiles v. Ashcroft, 320 F.3d 472, 474-75 (3d Cir.2003); Doh v. Gonz......
  • 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