Luis v. INS

• Court: Court of Appeals for the First Circuit
• Decided: November 8, 1999
• Docket: 99-1369
• Status: Published

Opinion

USCA1 Opinion

                 United States Court of Appeals

                     For the First Circuit


No. 99-1369



                      MARIA DULCE PENA LUIS,



                           Petitioner,



                                v.



             IMMIGRATION AND NATURALIZATION SERVICE,



                           Respondent.


ON PETITION FOR REVIEW OF AN ORDER

              OF THE BOARD OF IMMIGRATION APPEALS


Before

                                

                     Torruella, Chief Judge,

                                

                 Bownes, Senior Circuit Judge,

                                

                   and Lynch, Circuit Judge.


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.


November 8, 1999


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. 

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.  In

dismissing the appeal, 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 transitional rules of the Illegal Immigration Reform

and Immigrant Responsibility Act of 1996 ("IIRIRA"), Pub. L. 104-

208, 110 Stat. 3009 (1996).  In transitional rules cases, this

court has jurisdiction to hear appeals from the BIA under INA

 106, 8 U.S.C.  1105a, unless jurisdiction is otherwise

precluded.  See IIRIRA  309(c)(1).  

  Generally, under the old INA, courts have recognized

jurisdiction to review (for abuse of discretion) agency decisions

denying motions to remand, reopen or reconsider.  See Carter v.

INS, 90 F.3d 14, 15-17 (1st Cir. 1996); Gebremichael v. INS, 10

F.3d 28, 34 n.17 (1st Cir. 1993).  IIRIRA  309(c)(4)(E) precludes

jurisdiction if, and only if, review is sought of:  (1) a "decision

under" one of the enumerated sections; and (2) where such a

decision is based on a matter committed to agency discretion.  Luis

seeks review of the BIA's denial of her untimely motion to

reconsider.  Only this denial is before us.  Luis makes three

arguments: (1) that the denial was an abuse of discretion; (2) that

the BIA should have acted sua sponte; and (3) that the BIA's

decision denied her due process.  

  The first question is whether the denial of the motion to

reconsider was a "decision under" an enumerated section.  It

clearly was not.  Moreover, "[s]ome components of decisions made

under the enumerated sections are not committed to agency

discretion but are instead determinations of objective facts. 

Where the decision rests on these latter grounds, review is not

precluded by 309(c)(4)(E)."  Bernal-Vallejo v. INS, No. 99-1211,

slip op. at 2-3 (1st Cir. Nov. 2, 1999).  

  As the Fourth Circuit recognized in Stewart v. INS, 181

F.3d 587, 594-95 (4th Cir. 1999), some denials of such motions are

based on other statutory sections, such as INA  242B(e)(2), which

is a gatekeeper section requiring the alien to show exceptional

circumstances to be eligible for adjustment of status.  Adjustment

of status, INA  245, by contrast, is an enumerated section.  The

Stewart court held that  309(c)(4)(E) did not preclude

jurisdiction where the BIA's decision was based on a non-enumerated

section such as  242B(e)(2).  That is, Stewart rejects the idea

that  309(c)(4)(E) precludes review just because the motion is

related to an enumerated section.  See also Arrozal v. INS, 159

F.3d 429 (9th Cir. 1998) (holding that the court of appeals had

jurisdiction to hear an appeal from the BIA's denial of a motion to

reopen under  241(a)(2) of the INA, which is not one of the

enumerated sections listed in  309(c)(4)(E)).

  Luis seeks review of a denial of a motion to reconsider

the denial of a motion to reopen.  This was a decision under

8 C.F.R.  3.2(a), not one of those sections enumerated in IIRIRA

 309(c)(4)(E), and it was not a discretionary decision but an

uncontested factual determination.  Because it is undisputed that

the motion to reconsider was untimely, that ends the matter.  We

need not discuss the issue of whether  309(c)(4)(E) would bar

review by the court of appeals had the motion to reconsider been

timely filed.

  Luis invites this court to review the BIA's decision on

the ground that the BIA failed to exercise its discretion to sua

sponte reconsider its denial of Luis's motion to reopen her

deportation proceedings.  We decline the invitation because Luis

failed to exhaust her administrative remedies with regard to this

issue.  "Issues not raised before the Board may not be raised for

the first time upon judicial review of the Board's decisions." 

Ravindran v. INS, 976 F.2d 754, 761 (1st Cir. 1992); see also

Bernal-Vallejo, slip op. at 14.  Luis could have argued to the BIA

that even if the motion to reconsider was untimely, the BIA should

have exercised its sua sponte power pursuant to 8 C.F.R.  3.2(a). 

She did not and, therefore, we do not have jurisdiction to

entertain that issue. 

  Assuming arguendo that Luis would have exhausted her

administrative remedies, this court still has no jurisdiction to

review this claim because the decision of the BIA whether to invoke

its sua sponte authority is committed to its unfettered discretion. 

Therefore, the very nature of the claim renders it not subject to

judicial review.  See Heckler v. Chaney, 470 U.S. 821, 831-33

(1985); Massachusetts Pub. Interest Research Group, Inc. v. United

States Nuclear Regulatory Comm'n, 852 F.2d 9 (1st Cir. 1988).  

  Apart from the situation where Congress has expressed an

intent to preclude review, 

    review is not to be had if the statute is

  drawn so that a court would have no meaningful

  standard against which to judge the agency's

  exercise of discretion.  In such a case, the

  statute ("law") can be taken to have

  "committed" the decisionmaking to the agency's

  judgement absolutely. . . . [I]f no judicially

  manageable standards are available for judging

  how and when an agency should exercise its

  discretion, then it is impossible to evaluate

  agency action for "abuse of discretion."



Heckler, 470 U.S. at 830.  There are no guidelines or standards

which dictate how and when the BIA should invoke its sua sponte

power under 8 U.S.C.  3.2(a).  As such, it is left to the

discretion of the BIA and is not subject to review by this court. 

Therefore, this court does not have jurisdiction to review Luis's

claim that the BIA should have invoked its sua sponte authority to

reconsider her motion to reopen the deportation proceedings.

  Finally, Luis asserts that by refusing to consider the

motion to reconsider on the merits, the BIA denied her of her due

process rights.  This court has jurisdiction to review Luis's due

process claim.  See Bernal-Vallejo, slip op. at 13, (holding that

the due process argument "does not involve a matter that Congress

committed to agency discretion."); see also Antonio-Cruz v. INS,

147 F.3d 1129, 1130-31 (9th Cir. 1998) (finding that  309(c)(4)(E)

does not preclude review of a due process claim).

  Though the court has jurisdiction to review Luis's due

process claim, we find that this claim is frivolous.  Luis argues

that because the BIA refused to consider the motion to reconsider

on the merits, she was denied her due process rights.  After review

of the record, however, we find that this argument is without

merit.  In fact, Luis has had ample opportunity to present her

claims to the BIA; first, in her motion to remand; then in her

motion to reopen the deportation proceedings.  

  Luis asserted, inter alia, that she lived in the United

States for over ten years with her lawful permanent resident

husband and children.  She was employed, though she admittedly used

fraudulent documentation to secure her employment.  She never

received any government assistance or benefit, has never been

charged with a crime and has paid her taxes.  She asserts that had

the BIA considered those factors, it would have granted her motion

to reopen so she could apply for adjustment of status.  The record

reveals that the BIA did consider those factors when it denied her

motion to reopen on the merits.  The BIA explicitly discussed those

factors and concluded that "in the exercise of discretion[,]" Luis

did not warrant an adjustment of status.  The BIA found that her

"equities [were] outweighed by [her] adverse factors."  It should

also be noted again that Luis's motion to reconsider was untimely. 

Accordingly, we find that there was no due process violation.



Dismissed.