Robert Watson v. Eric Holder, Jr.

540 F. App'x 336

• Court: Court of Appeals for the Fifth Circuit
• Decided: September 19, 2013
• Docket: 13-60011
• Status: Unpublished

Opinion

PER CURIAM: *

Robert Randall Watson petitions for review of a Board of Immigration Appeals’ (BIA) order that denied his motion to reconsider a motion to reopen based upon eligibility for adjustment of status. Watson asserts that his motion to reopen based on his eligibility for adjustment of status was not untimely since the time and numerical limitations do not apply to his proceedings, which were commenced prior to June 18, 1992 under former Immigration and Nationality Act § 242(b), 8 U.S.C. § 1252(b). He asserts that the BIA’s invocation of its sua sponte authority and subsequent denial of his motion to reconsider contradicts this courts’s holding in Rodriguez-Manzano v. Holder, 666 F.3d 948 (5th Cir.2012). In accordance with Avilez-Granados v. Gonzales, 481 F.3d 869 (5th Cir.2007), Watson contends that his case should be remanded to the BIA for an adjudication of his application for adjustment of status since he has never had the opportunity to have it considered.

The decision to deny a motion for reconsideration is within the discretion of the BIA. 8 C.F.R. § 1003.2(a). The motion for reconsideration must identify a legal or factual error in the BIA’s prior decision and must be supported by relevant authority. § 1003.2(b)(1). We review the BIA’s denial of a motion for reconsideration under a highly deferential abuse-of-discretion standard. See Lara v. Trominski 216 F.3d 487, 496-97 (5th Cir.2000).

Watson did not file his motion to reopen seeking adjustment of status until November 20, 2002. This motion did not seek reopening to vacate his in absentia deportation order. Thus, as the immigration judge and the BIA found, his motion was untimely. See Matter of M-S-, 22 I. & N. Dec. 349, 356-57 (1998); 8 C.F.R. § 1003.2(c); § 1003.23(b)(1); see also Jeon v. Holder, 354 Fed.Appx. 50, 53-54 (5th Cir.2009). Therefore, the only way the BIA could have reopened his proceedings was via its sua sponte authority. See Ramos-Bonilla v. Mukasey, 543 F.3d 216, 219-20 (5th Cir.2008); Rodriguez-Manzano, 666 F.3d at 952 & n. 3. To the extent Watson seeks review of the BIA’s decision not to invoke its sua sponte authority, this court lacks jurisdiction. See Ramos-Bonilla, 543 F.3d at 220.

The BIA did not abuse its discretion in denying Watson’s motion for reconsideration. See Lara, 216 F.3d at 496-97. Accordingly, his petition for review is DENIED.

* Pursuant to 5th Cir. R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5th Cir. R. 47.5.4.