Opinion
20-716 NAC
04-06-2022
MARLENE ANDREA PESSOA ANTOINE, AKA MARLENE PESSOA, Petitioner, v. MERRICK B. GARLAND, UNITED STATES ATTORNEY GENERAL, Respondent.
FOR PETITIONER: Abdolreza Mazaheri, Esq., Sethi & Mazaheri, LLC, New York, NY. FOR RESPONDENT: Jeffrey Bossert Clark, Assistant Attorney General; Jennifer P. Levings, Senior Litigation Counsel; Tim Ramnitz, Attorney, Office of Immigration Litigation, United States Department of Justice, Washington, DC.
UNPUBLISHED OPINION
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 TO A SUMMARY ORDER MUST SERVE A COPY OF IT ON ANY PARTY NOT REPRESENTED BY COUNSEL.
At a stated term of the United States Court of Appeals for the Second Circuit, held at the Thurgood Marshall United States Courthouse, 40 Foley Square, in the City of New York, on the 6th day of April, two thousand twenty-two.
FOR PETITIONER: Abdolreza Mazaheri, Esq., Sethi & Mazaheri, LLC, New York, NY.
FOR RESPONDENT: Jeffrey Bossert Clark, Assistant Attorney General; Jennifer P. Levings, Senior Litigation
Counsel; Tim Ramnitz, Attorney, Office of Immigration Litigation, United States Department of Justice, Washington, DC.
PRESENT: DENNIS JACOBS, DENNY CHIN, MICHAEL H. PARK, Circuit Judges.
UPON DUE CONSIDERATION of this petition for review of a Board of Immigration Appeals ("BIA") decision, it is hereby ORDERED, ADJUDGED, AND DECREED that the petition for review is DISMISSED.
Petitioner, Marlene Andrea Pessoa Antoine, a native and citizen of Jamaica, seeks review of a February 11, 2020, decision of the BIA denying her motion to reopen her removal proceedings. In re Marlene Andrea Pessoa Antoine, No. A089 496 555 (B.I.A. Feb. 11, 2020). We assume the parties' familiarity with the underlying facts and procedural history.
We review the BIA's denial of a motion to reopen for abuse of discretion. Ali v. Gonzales, 448 F.3d 515, 517 (2d Cir. 2006). An alien generally may file a motion to reopen no later than 90 days after the final administrative decision. See 8 U.S.C. § 1229a(c)(7)(C)(i); 8 C.F.R. § 1003.2(c)(2). There is an exception to the 90-day deadline where an alien is seeking to reopen to apply for special-rule cancellation of removal under 8 U.S.C. § 1229b(b)(2); in those cases, the motion must be filed no later than one year after the removal order becomes final. 8 U.S.C. § 1229a(c)(7)(C)(iv).
Antoine sought reopening on two grounds: (1) to pursue adjustment of status based on a visa petition that her U.S. citizen son filed on her behalf after he turned 21; and (2) to apply for special-rule cancellation as an abused spouse of a U.S. citizen. There is no dispute that both branches of Antoine's August 2019 motion were untimely because she filed the motion more than a year and a half after her December 2017 removal order.
To the extent she sought to reopen to adjust status based on the visa petition, there is no exception to the 90-day deadline. See Matter of Yauri, 25 I. & N. Dec. 103, 105 (B.I.A. 2009) ("emphasiz[ing] that untimely motions to reopen to pursue an application for adjustment of status . . . do not fall within any of the statutory or regulatory exceptions to the time limits for motions to reopen before the Board and will ordinarily be denied"). Antoine argues that the agency should have equitably tolled the deadline because of the hardship her children would face and asserts that the immigration judge and her counsel misadvised her of her eligibility to adjust, but we do not consider these arguments because she did not present them to the BIA, Lin Zhong v. U.S. Dep't of Justice, 480 F.3d 104, 107 n.1, 122-23 (2d Cir. 2007) (holding that judicial review is generally limited to issues raised before the agency).
Thus, the first branch of Antoine's motion necessarily relied on the BIA's authority to reopen her proceedings sua sponte despite the time limitation, which is an "entirely discretionary" determination that we lack jurisdiction to review. Ali, 448 F.3d at 518. Although we may remand if "the [BIA] . . . declined to exercise its sua sponte authority because it misperceived the legal background and thought, incorrectly, that a reopening would necessarily fail," Mahmood v. Holder, 570 F.3d 466, 469 (2d Cir. 2009), there is no basis for remand here because the BIA did not address Antoine's eligibility to adjust, but simply determined that she failed to present an "exceptional situation" warranting a favorable exercise of discretion.
Regarding the second branch of Antoine's motion, the BIA has discretion to waive the one-year deadline for reopening to apply for special-rule cancellation when an alien "demonstrates extraordinary circumstances or extreme hardship to the alien's child." 8 U.S.C. § 1229a(c)(7)(C)(iv)(III). The BIA determined that Antoine failed to demonstrate "extraordinary circumstances or extreme hardship." Our jurisdiction to review this discretionary determination is limited to constitutional claims or questions of law. See 8 U.S.C. § 1252(a)(2)(B) (limiting review of "any . . . decision or action . . . specified under this subchapter to be in the discretion of the Attorney General or the Secretary of Homeland Security"), (D); id. § 1229a(c)(7)(C)(iv)(III) ("Attorney General may, in the Attorney General's discretion, waive this time limitation in the case of an alien who demonstrates extraordinary circumstances or extreme hardship to the alien's child"). Antoine does not raise such a claim, as she argues only that the BIA "abused [its] discretion" in declining to excuse her untimely filing based on her children's hardship. Cf. Barco- Sandoval v. Gonzales, 516 F.3d 35, 39 (2d Cir. 2008) ("a petitioner cannot use the rhetoric of a constitutional claim or question of law to disguise what is essentially a quarrel about fact-finding or the exercise of discretion" (cleaned up)). Finally, inasmuch as Antoine now couches her arguments regarding cancellation in terms of equitable tolling, she did not exhaust this claim. Before the BIA, she argued only that the deadline should be excused based on hardship to her children. See Lin Zhong, 480 F.3d at 107 n.1, 122-23.
Although Antoine also asked the BIA to reopen sua sponte on this basis, she has abandoned any challenge to the BIA's decision not to reopen sua sponte for special-rule cancellation. See Gui Yin Liu v. INS, 508 F.3d 716, 723 n.6 (2d Cir. 2007) (deeming claim not raised in brief abandoned). Even if not abandoned, we lack jurisdiction to review the denial of sua sponte reopening. Ali, 448 F.3d at 518.
For the foregoing reasons, the petition for review is DISMISSED. All pending motions and applications are DENIED and stays VACATED.