Nicholas Seivwright v. William Barr

• Court: Court of Appeals for the Fourth Circuit
• Decided: September 18, 2019
• Docket: 18-2499
• Status: Unpublished

Opinion

UNPUBLISHED

UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT

No. 18-2499

NICHOLAS AVASKAR SEIVWRIGHT, a/k/a Nicolas Nicholas,

Petitioner,

v.

WILLIAM P. BARR, Attorney General,

Respondent,

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CAPITAL AREA IMMIGRANTS’ RIGHTS COALITION,

Amicus Supporting Petitioner.

On Petition for Review of an Order of the Board of Immigration Appeals.

Submitted: September 3, 2019 Decided: September 18, 2019

Before AGEE and KEENAN, Circuit Judges, and SHEDD, Senior Circuit Judge.

Petition dismissed by unpublished per curiam opinion.

Maureen A. Sweeney, Supervising Attorney, Virginia Giannini, Student Attorney, Bennett Procter, Student Attorney, UNIVERSITY OF MARYLAND FRANCIS KING CAREY SCHOOL OF LAW, Baltimore, Maryland, for Petitioner. Joseph H. Hunt, Assistant Attorney General, Mary Jane Candaux, Assistant Director, Stephanie E. Beckett, Trial Attorney, OFFICE OF IMMIGRATION LITIGATION, UNITED STATES DEPARTMENT OF JUSTICE, Washington, D.C., for Respondent. Claudia R. Cubas, Mark Feldman, Jenny Kim, CAPITAL AREA IMMIGRANTS’ RIGHTS COALITION, Washington, D.C.; Erica Hashimoto, Director, Marcella Coburn, Dylan Byrd, Student Counsel, Rebecca Deucher, Student Counsel, Dominick Schumacher, Student Counsel, Appellate Litigation Program, GEORGETOWN UNIVERSITY LAW CENTER, Washington, D.C. for Amicus Curiae.

Unpublished opinions are not binding precedent in this circuit.

2 PER CURIAM:

Nicholas Avaskar Seivwright, a native and citizen of Jamaica, petitions for review

of an order of the Board of Immigration Appeals denying Seivwright’s motion to reopen

his removal proceedings. We dismiss the petition for lack of jurisdiction.

Pursuant to 8 U.S.C. § 1252(a)(2)(C) (2012), we lack jurisdiction, except as

provided in 8 U.S.C. § 1252(a)(2)(D) (2012), to review the final order of removal of an

alien who is removable for having been convicted of certain enumerated crimes, including

an aggravated felony. Under § 1252(a)(2)(C), we retain jurisdiction “to review factual

determinations that trigger the jurisdiction-stripping provision, such as whether

[Seivwright] [i]s an alien and whether [ ]he has been convicted of an aggravated felony.”

Ramtulla v. Ashcroft, 301 F.3d 202, 203 (4th Cir. 2002). Once we confirm these two factual

determinations, then, under 8 U.S.C. § 1252(a)(2)(C), (D), we can only consider

“constitutional claims or questions of law.” § 1252(a)(2)(D); see Turkson v. Holder, 667

F.3d 523, 527 (4th Cir. 2012). This jurisdictional bar extends to limit our review of an

order denying a criminal alien’s motion to reopen his removal proceedings. Oxygene v.

Lynch, 813 F.3d 541, 544-45 (4th Cir. 2016).

Seivwright does not now, and did not in the underlying motion to reopen, contest

either his alienage or his removability for having been convicted of aggravated felonies.

While Seivwright raises a number of issues in his opening brief, upon review, we agree

with the Attorney General that these issues do not present constitutional claims or colorable

issues of law under § 1252(a)(2)(D) but, rather, raise factual disputes relative to the three

factual findings underpinning the Board’s ruling that Seivwright’s motion to reopen was

3 time-barred. See id. at 545 (explaining that we “must analyze each argument” a criminal

alien raises in response to the denial of a motion to reopen “to determine whether it presents

a legal or constitutional question, or raises only a factual dispute”). We thus conclude that

§ 1252(a)(2)(C) divests us of jurisdiction over most of the raised issues.

Seivwright also challenges the Board’s refusal to exercise its sua sponte authority

to reopen his proceedings. We generally lack jurisdiction to review how the agency

exercises its sua sponte discretion. See Lawrence v. Lynch, 826 F.3d 198, 206 (4th Cir.

2016); Mosere v. Mukasey, 552 F.3d 397, 400-01 (4th Cir. 2009). Even assuming, as

Seivwright asserts, that we may review the Board’s exercise of sua sponte discretion when

it is based on a faulty legal premise, see Lawrence, 826 F.3d at 207 n.5, or violates the

Board’s “general policy” restricting its own discretion, see Chehazeh v. Att’y Gen., 666

F.3d 118, 129 (3d Cir. 2012), we conclude that Seivwright has failed to establish that either

potential exception applies here.

Accordingly, we dismiss the petition for review. We dispense with oral argument

because the facts and legal contentions are adequately presented in the materials before this

court and argument would not aid the decisional process.

PETITION DISMISSED