Matthews v. Bondi

Opinion

21-6379(L)

Matthews v. Bondi BIA

A042 231 142

UNITED STATES COURT OF APPEALS FOR THE SECOND CIRCUIT

SUMMARY ORDER

RULINGS BY SUMMARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT. CITATION TO A SUMMARY ORDER FILED ON OR AFTER JANUARY 1, 2007, IS PERMITTED AND IS GOVERNED BY FEDERAL RULE OF APPELLATE PROCEDURE 32.1 AND THIS COURT’S LOCAL RULE 32.1.1. WHEN CITING A SUMMARY ORDER IN A DOCUMENT FILED WITH THIS COURT, A PARTY MUST CITE EITHER THE FEDERAL APPENDIX OR AN ELECTRONIC DATABASE (WITH THE NOTATION “SUMMARY ORDER”). A PARTY CITING A SUMMARY ORDER MUST SERVE A COPY OF IT ON ANY PARTY NOT REPRESENTED BY COUNSEL.

1 At a stated term of the United States Court of Appeals for the Second 2 Circuit, held at the Thurgood Marshall United States Courthouse, 40 Foley 3 Square, in the City of New York, on the 5th day of November, two thousand 4 twenty-five. 5 6 PRESENT: 7 RAYMOND J. LOHIER, JR., 8 STEVEN J. MENASHI, 9 ALISON J. NATHAN, 10 Circuit Judges. 11 _____________________________________ 12 13 GERARD PATRICK MATTHEWS, 14 Petitioner, 15 21-6379(L), 16 v. 21-6546(Con) 17 NAC 18 PAMELA BONDI, UNITED STATES 19 ATTORNEY GENERAL, 20 Respondent. 21 _____________________________________ 22 23 FOR PETITIONER: Gerard Matthews, pro se, Bronx, NY.

1 FOR RESPONDENT: Brian M. Boynton, Principal Deputy Assistant 2 Attorney General; Cindy S. Ferrier, Assistant 3 Director; Marie V. Robinson, Attorney, Office 4 of Immigration Litigation, United States 5 Department of Justice, Washington, DC.

6 UPON DUE CONSIDERATION of these petitions for review of decisions of 7 the Board of Immigration Appeals (“BIA”), it is hereby ORDERED, ADJUDGED, 8 AND DECREED that the petitions for review are DENIED. 9 Petitioner Gerard Patrick Matthews, proceeding pro se, petitions for review 10 of June 7, 2021 and September 29, 2021 decisions of the BIA denying his motions 11 to reopen and terminate his removal proceedings. In re Gerard Patrick Matthews, 12 No. A042 231 142 (B.I.A. June 7, 2021, Sept. 29, 2021). We assume the parties’ 13 familiarity with the underlying facts and procedural history. 14 Matthews’s petitions are timely as to the BIA’s 2021 decisions denying his 15 motions to reopen and terminate but not as to the BIA’s underlying 2016 removal 16 order. So the 2021 decisions denying his motions are the only ones before us. See 17 8 U.S.C. § 1252(b)(1) (“The petition for review must be filed not later than 30 days 18 after the date of the final order of removal.”); Kaur v. BIA, 413 F.3d 232, 233 (2d Cir. 19 2005). We review the BIA’s denial of a motion to reopen for abuse of discretion 20 and underlying factual findings for substantial evidence, Jian Hui Shao v. Mukasey,

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1 546 F.3d 138, 168–69 (2d Cir. 2008), but we review de novo constitutional claims 2 and questions of law, Luna v. Holder, 637 F.3d 85, 102 (2d Cir. 2011). 3 A. Docket No. 21-6379(L): Denial of Untimely Motion to Reopen 4 A motion to reopen must “be filed within 90 days of the date of entry of a 5 final administrative order of removal.” 8 U.S.C. § 1229a(c)(7)(C)(i). It is 6 undisputed that Matthews’s 2020 motion to reopen was untimely because he filed 7 it four years after his removal order became final in 2016. 8 Equitable tolling may excuse the time limitation, but only where a movant 9 demonstrates that “some extraordinary circumstance stood in [his] way.” Doe v. 10 United States, 76 F.4th 64, 71 (2d Cir. 2023) (quotation marks omitted). Absent 11 equitable tolling, the BIA may reopen proceedings sua sponte despite the time 12 limitation. 8 C.F.R. § 1003.2(a). However, that authority “is entirely 13 discretionary and therefore beyond” our jurisdiction, Ali v. Gonzales, 448 F.3d 515, 14 518 (2d Cir. 2006), except we may remand if the BIA “misperceived the legal 15 background and thought, incorrectly, that a reopening would necessarily fail,” 16 Mahmood v. Holder, 570 F.3d 466, 469 (2d Cir. 2009); see also Li Chen v. Garland, 43 17 F.4th 244, 253–54 (2d Cir. 2022). The BIA limits sua sponte reopening to 18 “exceptional situations.” In re G-D-, 22 I. & N. Dec. 1132, 1134–35 (B.I.A. 1999).

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1 For a change in the law to be considered exceptional, it must be fundamental rather 2 than incremental. Id. at 1135. 3 We find no error or misperception of the law in the BIA’s determination that 4 Matthews did not show that Obeya v. Sessions, 884 F.3d 442 (2d Cir. 2018), and 5 Matter of Soram, 25 I. & N. Dec. 378 (B.I.A. 2010), constituted a fundamental change 6 in law that warranted excusing the untimely filing of his motion to reopen or sua 7 sponte reopening. In Obeya, we applied a decades-old test to determine whether 8 a statute is impermissibly applied retroactively. 884 F.3d at 445–49. And, as we 9 held in Marquez v. Garland, Soram was not a departure from BIA case law but was 10 instead “an attempt to fill a void in an unsettled area of law” and thus “applies 11 retroactively.” 13 F.4th 108, 114 (2d Cir. 2021). 12 B. Docket No. 21-6546(Con): Denial of Motion to Terminate 13 Matthews argues that, under Pereira v. Sessions, 585 U.S. 198 (2018), and Niz- 14 Chavez v. Garland, 593 U.S. 155 (2021), the agency lacked jurisdiction over his 15 removal proceedings because his notice to appear did not include the date, time, 16 or location of his hearing. Given that he was served with a hearing notice 17 providing the missing information, his jurisdictional argument is foreclosed by 18 Banegas Gomez v. Barr, 922 F.3d 101, 105, 112 (2d Cir. 2019); see also Chery v. Garland,

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1 16 F.4th 980, 987 (2d Cir. 2021); Cupete v. Garland, 29 F.4th 53, 57 (2d Cir. 2022). 2 C. Miscellaneous Arguments and Motions 3 We do not reach Matthews’s constitutional challenges to his underlying 4 removal order because they are unexhausted and beyond the scope of our review 5 of his petitions for review of the BIA’s denial of his motions to reopen and 6 terminate. See Ud Din v. Garland, 72 F.4th 411, 419–20 & n.2 (2d Cir. 2023) 7 (recognizing that issue exhaustion is mandatory); see also Kaur, 413 F.3d at 233. As 8 the Government argues, Matthews’s supplemental brief and motion to file a 9 second supplemental brief raise arguments that are outside the scope of our 10 review. 11 For the foregoing reasons, the petition for review is DENIED. All pending 12 motions and applications are DENIED and stays VACATED.

13 FOR THE COURT: 14 Catherine O’Hagan Wolfe, 15 Clerk of Court