NOT RECOMMENDED FOR FULL-TEXT PUBLICATION File Name: 19a0487n.06
No. 18-4207
UNITED STATES COURT OF APPEALS FOR THE SIXTH CIRCUIT FILED Sep 19, 2019 DEBORAH S. HUNT, Clerk ELISEO PEREYRA, ) ) Petitioner, ) ON PETITION FOR REVIEW OF ) AN ORDER OF THE BOARD OF v. ) IMMIGRATION APPEALS ) WILLIAM P. BARR, Attorney General, ) ) OPINION Respondent. ) )
Before: MOORE, McKEAGUE, and LARSEN, Circuit Judges.
KAREN NELSON MOORE, Circuit Judge. Eliseo Pereyra petitions for review of the
Board of Immigration Appeals’ (“BIA”) denial of his motion to reopen his removal proceedings.
We conclude that we are without jurisdiction to review the BIA’s decision because it was made
pursuant to the BIA’s authority to reopen sua sponte. We also conclude that the BIA had
jurisdiction to institute removal proceedings against Pereyra. We therefore dismiss Pereyra’s
petition for review of the BIA’s order.
I. BACKGROUND
Pereyra is a native and citizen of Mexico who asserts that he first entered the United States
without inspection in 1995. Pet’r Br. at 3. He married Elizabeth Bustos, a United States citizen
in 1997. Bustos filed I-130 and I-485 petitions on Pereyra’s behalf, seeking to adjust his
immigration status. In 1999 these petitions were denied for lack of prosecution. AR at 291, 243. No. 18-4207, Pereyra v. Barr
On September 8, 1999, the Immigration and Naturalization Service issued Pereyra a Notice
to Appear (“NTA”), asserting that he was subject to removal under §§ 212(a)(6)(A)(i) &
237(a)(1)(A) of the Immigration and Nationality Act. Id. at 22. The initial NTA did not specify
the time or place of Pereyra’s hearing. Id. Pereyra subsequently received a notice of a hearing
date and location and attended removal hearings. Id. at 288.
During this process, Bustos filed a second petition on Pereyra’s behalf, which the United
States Citizenship and Immigration Services denied upon concluding that their marriage was
fraudulent. Id. at 258–63. Pereyra and Bustos divorced, and Pereyra married Crystal Joy Pereyra
on March 15, 2005. His new wife had a daughter from a prior relationship, and together the couple
had a son.
Pereyra’s removal proceedings continued, and on April 8, 2005, his attorney wrote a letter
to the Immigration Judge (“IJ”) informing him that Pereyra planned to voluntarily depart the
United States the following day and would not appear at his hearing scheduled for April 19, 2005.
Id. at 249. Because Pereyra failed to appear at that hearing, the IJ ordered him removed in absentia.
Id. at 230.
Pereyra attempted to reenter the United States in early May of 2005 and was removed. Id.
at 75–78. He tried again in late May, was apprehended, and returned to Mexico pursuant to an
expedited removal order. Id. at 80–82. He then reentered the United States on June 30, 2005
without inspection. Pet’r Br. at 6.
On April 22, 2011, slightly over six years after the IJ ordered him removed in absentia,
Pereyra filed a “Motion to Vacate Prior Removal Order and to Reopen Proceedings.” AR at 85–
2 No. 18-4207, Pereyra v. Barr
97. He requested that the IJ exercise his sua sponte authority to reopen, arguing that the earlier
order of removal had been invalid because Pereyra had already departed from the United States
when it issued, that his previous counsel had been ineffective, and that, should the proceedings be
reopened, he would be eligible to adjust his status because of his marriage to a United States
citizen. The Department of Homeland Security (“DHS”) opposed his motion. Id. at 70–73. The
IJ denied Pereyra’s motion to reopen, rejecting each of his arguments. Id. at 64–66. Pereyra
appealed to the BIA, which dismissed the appeal. Id. at 28–29.
On September 17, 2018, Pereyra filed a second motion to reopen. Id. at 15–19. Pereyra
argued that under the Supreme Court’s decision in Pereira v. Sessions, 138 S. Ct. 2105 (2018), the
NTA he was issued in 1999 was defective and therefore had not stopped the running of time for
his continuous presence in the United States. Accordingly, he argued that, should proceedings be
reopened, he would be eligible for cancellation of removal because he has been continuously in
the United States for over ten years and his U.S. citizen relatives would suffer if he were removed
to Mexico. AR at 17–18. DHS opposed Pereyra’s motion. Id. at 11.
The BIA denied the second motion to reopen. It noted that Pereyra’s “motion is a second
motion to reopen that was filed long after the 90-day filing period expired.” Id. at 3. It further
stated that Pereyra had failed to show the existence of “an exceptional situation that would warrant
reopening pursuant to this Board’s limited authority to reopen sua sponte under 8 C.F.R.
§ 1003.2(a).” Id. Pereyra petitioned this court for review of the BIA’s denial of his motion to
reopen.
3 No. 18-4207, Pereyra v. Barr
II. DISCUSSION
Pereyra’s petition involves two jurisdictional issues. The first deals with the jurisdiction
of this court to review the BIA’s refusal to sua sponte reopen Pereyra’s case. The second deals
with the jurisdiction of the BIA to institute removal proceedings against Pereyra.
A. Sixth Circuit’s jurisdiction to review the BIA’s denial of the motion to reopen
Generally, “[a]n alien may file one motion to reopen proceedings,” which must be “filed
within 90 days of the date of entry of a final administrative order of removal.” 8 U.S.C.
§ 1229a(c)(7)(A) & (C). There are some exceptions to these general requirements. See, e.g., 8
U.S.C. § 1229a(b)(5)(C) (providing for longer periods to file for reopening in certain
circumstances); id. at (c)(7)(C)(ii) (no time limit to file motions to reopen for asylum claims based
on changed country conditions).
The BIA’s decisions to grant or deny motions to reopen are discretionary, based on whether
the movant offers new evidence that could not have been discovered previously, whether the
movant was previously aware of the availability of the relief he seeks, and whether circumstances
have changed since the earlier hearing. 8 C.F.R. § 1003.2(c)(1). We normally review these BIA
decisions for abuse of discretion. Rais v. Holder, 768 F.3d 453, 460 (6th Cir. 2014); see also
Hernandez-Perez v. Whitaker, 911 F.3d 305, 315–16 (6th Cir. 2018) (discussing under what
circumstances courts of appeals have jurisdiction to review the BIA’s decisions on motions to
reopen).
The BIA may also reopen proceedings on its own authority in “exceptional situations.” In
re J-J-, 21 I. & N. Dec. 976, 984 (BIA 1997); 8 C.F.R. § 1003.2(a). This power “is not meant to
4 No. 18-4207, Pereyra v. Barr
be used as a general cure for filing defects or to otherwise circumvent the regulations, where
enforcing them might result in hardship.” In re J-J-, 21 I. & N. Dec. at 984. We do not have
jurisdiction to review the BIA’s decisions based on its authority to grant motions to reopen sua
sponte because “the exercise of this specific authority ‘is committed to the unfettered discretion of
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NOT RECOMMENDED FOR FULL-TEXT PUBLICATION File Name: 19a0487n.06
No. 18-4207
UNITED STATES COURT OF APPEALS FOR THE SIXTH CIRCUIT FILED Sep 19, 2019 DEBORAH S. HUNT, Clerk ELISEO PEREYRA, ) ) Petitioner, ) ON PETITION FOR REVIEW OF ) AN ORDER OF THE BOARD OF v. ) IMMIGRATION APPEALS ) WILLIAM P. BARR, Attorney General, ) ) OPINION Respondent. ) )
Before: MOORE, McKEAGUE, and LARSEN, Circuit Judges.
KAREN NELSON MOORE, Circuit Judge. Eliseo Pereyra petitions for review of the
Board of Immigration Appeals’ (“BIA”) denial of his motion to reopen his removal proceedings.
We conclude that we are without jurisdiction to review the BIA’s decision because it was made
pursuant to the BIA’s authority to reopen sua sponte. We also conclude that the BIA had
jurisdiction to institute removal proceedings against Pereyra. We therefore dismiss Pereyra’s
petition for review of the BIA’s order.
I. BACKGROUND
Pereyra is a native and citizen of Mexico who asserts that he first entered the United States
without inspection in 1995. Pet’r Br. at 3. He married Elizabeth Bustos, a United States citizen
in 1997. Bustos filed I-130 and I-485 petitions on Pereyra’s behalf, seeking to adjust his
immigration status. In 1999 these petitions were denied for lack of prosecution. AR at 291, 243. No. 18-4207, Pereyra v. Barr
On September 8, 1999, the Immigration and Naturalization Service issued Pereyra a Notice
to Appear (“NTA”), asserting that he was subject to removal under §§ 212(a)(6)(A)(i) &
237(a)(1)(A) of the Immigration and Nationality Act. Id. at 22. The initial NTA did not specify
the time or place of Pereyra’s hearing. Id. Pereyra subsequently received a notice of a hearing
date and location and attended removal hearings. Id. at 288.
During this process, Bustos filed a second petition on Pereyra’s behalf, which the United
States Citizenship and Immigration Services denied upon concluding that their marriage was
fraudulent. Id. at 258–63. Pereyra and Bustos divorced, and Pereyra married Crystal Joy Pereyra
on March 15, 2005. His new wife had a daughter from a prior relationship, and together the couple
had a son.
Pereyra’s removal proceedings continued, and on April 8, 2005, his attorney wrote a letter
to the Immigration Judge (“IJ”) informing him that Pereyra planned to voluntarily depart the
United States the following day and would not appear at his hearing scheduled for April 19, 2005.
Id. at 249. Because Pereyra failed to appear at that hearing, the IJ ordered him removed in absentia.
Id. at 230.
Pereyra attempted to reenter the United States in early May of 2005 and was removed. Id.
at 75–78. He tried again in late May, was apprehended, and returned to Mexico pursuant to an
expedited removal order. Id. at 80–82. He then reentered the United States on June 30, 2005
without inspection. Pet’r Br. at 6.
On April 22, 2011, slightly over six years after the IJ ordered him removed in absentia,
Pereyra filed a “Motion to Vacate Prior Removal Order and to Reopen Proceedings.” AR at 85–
2 No. 18-4207, Pereyra v. Barr
97. He requested that the IJ exercise his sua sponte authority to reopen, arguing that the earlier
order of removal had been invalid because Pereyra had already departed from the United States
when it issued, that his previous counsel had been ineffective, and that, should the proceedings be
reopened, he would be eligible to adjust his status because of his marriage to a United States
citizen. The Department of Homeland Security (“DHS”) opposed his motion. Id. at 70–73. The
IJ denied Pereyra’s motion to reopen, rejecting each of his arguments. Id. at 64–66. Pereyra
appealed to the BIA, which dismissed the appeal. Id. at 28–29.
On September 17, 2018, Pereyra filed a second motion to reopen. Id. at 15–19. Pereyra
argued that under the Supreme Court’s decision in Pereira v. Sessions, 138 S. Ct. 2105 (2018), the
NTA he was issued in 1999 was defective and therefore had not stopped the running of time for
his continuous presence in the United States. Accordingly, he argued that, should proceedings be
reopened, he would be eligible for cancellation of removal because he has been continuously in
the United States for over ten years and his U.S. citizen relatives would suffer if he were removed
to Mexico. AR at 17–18. DHS opposed Pereyra’s motion. Id. at 11.
The BIA denied the second motion to reopen. It noted that Pereyra’s “motion is a second
motion to reopen that was filed long after the 90-day filing period expired.” Id. at 3. It further
stated that Pereyra had failed to show the existence of “an exceptional situation that would warrant
reopening pursuant to this Board’s limited authority to reopen sua sponte under 8 C.F.R.
§ 1003.2(a).” Id. Pereyra petitioned this court for review of the BIA’s denial of his motion to
reopen.
3 No. 18-4207, Pereyra v. Barr
II. DISCUSSION
Pereyra’s petition involves two jurisdictional issues. The first deals with the jurisdiction
of this court to review the BIA’s refusal to sua sponte reopen Pereyra’s case. The second deals
with the jurisdiction of the BIA to institute removal proceedings against Pereyra.
A. Sixth Circuit’s jurisdiction to review the BIA’s denial of the motion to reopen
Generally, “[a]n alien may file one motion to reopen proceedings,” which must be “filed
within 90 days of the date of entry of a final administrative order of removal.” 8 U.S.C.
§ 1229a(c)(7)(A) & (C). There are some exceptions to these general requirements. See, e.g., 8
U.S.C. § 1229a(b)(5)(C) (providing for longer periods to file for reopening in certain
circumstances); id. at (c)(7)(C)(ii) (no time limit to file motions to reopen for asylum claims based
on changed country conditions).
The BIA’s decisions to grant or deny motions to reopen are discretionary, based on whether
the movant offers new evidence that could not have been discovered previously, whether the
movant was previously aware of the availability of the relief he seeks, and whether circumstances
have changed since the earlier hearing. 8 C.F.R. § 1003.2(c)(1). We normally review these BIA
decisions for abuse of discretion. Rais v. Holder, 768 F.3d 453, 460 (6th Cir. 2014); see also
Hernandez-Perez v. Whitaker, 911 F.3d 305, 315–16 (6th Cir. 2018) (discussing under what
circumstances courts of appeals have jurisdiction to review the BIA’s decisions on motions to
reopen).
The BIA may also reopen proceedings on its own authority in “exceptional situations.” In
re J-J-, 21 I. & N. Dec. 976, 984 (BIA 1997); 8 C.F.R. § 1003.2(a). This power “is not meant to
4 No. 18-4207, Pereyra v. Barr
be used as a general cure for filing defects or to otherwise circumvent the regulations, where
enforcing them might result in hardship.” In re J-J-, 21 I. & N. Dec. at 984. We do not have
jurisdiction to review the BIA’s decisions based on its authority to grant motions to reopen sua
sponte because “the exercise of this specific authority ‘is committed to the unfettered discretion of
the BIA.’” Rais, 768 F.3d at 460 (quoting Barry v. Mukasey, 524 F.3d 721, 723 (6th Cir. 2008));
see also Harchenko v. INS, 379 F.3d 405, 410–11 (6th Cir. 2004).
Pereyra “neither disputes that [his] [second] motion [to reopen] was both untimely and
number-barred nor asserts that he qualifies for any exception to the filing requirements.” Rais,
768 F.3d at 459. That leaves “the BIA’s sua sponte authority to grant his motion [as] the only
means by which he could have obtained relief.” Id. at 464. As stated, we are without jurisdiction
to review this type of decision, and therefore must dismiss Pereyra’s petition. See Jatta v. Sessions,
698 F. App’x 818, 820 (6th Cir. 2017).
B. BIA’s jurisdiction to institute removal proceedings
Pereyra asserts that the BIA itself was without jurisdiction to institute removal proceedings
against him because the NTA that it issued him did not include the time or location of the hearing,
citing the Supreme Court’s decision in Pereira v. Sessions. Pet’r Br. at 11. The government
responds that our decision in Hernandez-Perez v. Whitaker, 911 F.3d 305 (6th Cir. 2018),
addressed and foreclosed this argument.
In Pereira, the Supreme Court determined that an NTA must specify the time and place of
the removal hearing if it is to stop the time running on a period of continuous physical presence in
the United States for the purposes of cancellation of removal determinations. 138 S. Ct. at 2114.
5 No. 18-4207, Pereyra v. Barr
The BIA concluded in Matter of Bermudez-Cota that in the context of vesting jurisdiction with the
BIA over removal proceedings, however, an NTA “that does not specify the time and place of an
alien’s initial removal hearing” is sufficient, “so long as a notice of hearing specifying this
information is later sent to the alien.” 27 I & N. Dec. 441, 447 (BIA 2018). In Hernandez-Perez,
we explicitly considered the potential implications of Pereira for whether an NTA must include
time and location in order to vest jurisdiction with the BIA. 911 F.3d at 314–15. Rather than
extending Pereira to deprive the BIA of jurisdiction where an NTA lacked time and location
information, we cabined Pereira’s holding and adopted the BIA’s view as expressed in Bermudez-
Cota. Id. at 315.
Hernandez-Perez governs Pereyra’s case. Although the initial NTA issued to Pereyra
lacked the time and location of the hearing, Pereyra does not dispute that a subsequent notice filled
those informational gaps. See AR at 288. This was enough to vest jurisdiction with the BIA.
Pereyra asserts that his case is distinguishable from Hernandez-Perez because Pereyra was
“removed in absentia based on ineffective assistance of counsel.” Pet’r Br. at 15. He does not,
however, explain why that distinction compels a different jurisdictional result than that reached in
Hernandez-Perez. We consider any such argument forfeited because it was “adverted to in a
perfunctory manner, unaccompanied by some effort at developed argumentation.” United States
v. Elder, 90 F.3d 1110, 1118 (6th Cir. 1996) (quoting United States v. Zannino, 895 F.2d 1, 17 (1st
Cir. 1990)).
III. CONCLUSION
We dismiss Pereyra’s petition for review of the BIA’s denial of his motion to reopen.