10-2139-ag
    Tavarez v. Holder
                                                                                  BIA
                                                                          A034 133 035


                         UNITED STATES COURT OF APPEALS
                             FOR THE SECOND CIRCUIT

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         At a stated term of the United States Court of Appeals
    for the Second Circuit, held at the Daniel Patrick Moynihan
    United States Courthouse, 500 Pearl Street, in the City of
    New York, on the 17th day of May, two thousand eleven.

    PRESENT:
             ROBERT A. KATZMANN,
             RICHARD C. WESLEY,
             DENNY CHIN,
                Circuit Judges.
    _____________________________________

    RAFAEL ANTONIO TAVAREZ,
             Petitioner,

                        v.                                 10-2139-ag
                                                           NAC
    ERIC H. HOLDER, JR., UNITED STATES
    ATTORNEY GENERAL,
             Respondent.
    _____________________________________

    FOR PETITIONER:               Michael Kohler, Syosset, New York.

    FOR RESPONDENT:               Tony West, Assistant Attorney
                                  General; Emily Anne Radford,
                                  Assistant Director; Aric A.
                                  Anderson, Trial Attorney, Office of
                                  Immigration Litigation, Civil
                                  Division, United States Department
                                  of Justice, Washington, D.C.
    UPON DUE CONSIDERATION of this petition for review of a

decision of the Board of Immigration Appeals (“BIA”), it is

hereby ORDERED, ADJUDGED, AND DECREED, that the petition for

review is DISMISSED.

    Rafael Antonio Tavarez, a native and citizen of the

Dominican Republic, seeks review of a May 4, 2010 order of

the BIA denying his motion to reopen.     In re Rafael Antonio

Tavarez, No. A034 133 035 (B.I.A. May 4, 2010).       We assume

the parties’ familiarity with the underlying facts and

procedural history of this case.

    Generally, we lack jurisdiction to review the “entirely

discretionary” decision of the BIA whether to reopen removal

proceedings sua sponte.   Ali v. Gonzales, 

, 518

(2d Cir. 2006) (per curiam).     However, we retain

jurisdiction to review such decisions when they are premised

on a misperception of the law.     See Mahmood v. Holder, 

, 469 (2d Cir. 2009) (holding that “where the Agency

may have declined to exercise its sua sponte authority

because it misperceived the legal background and thought,

incorrectly, that a reopening would necessarily fail, remand

to the Agency for reconsideration in view of the correct law

is appropriate”).


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    Tavarez argues that in Kucana v. Holder, 

(2010), the Supreme Court granted this Court jurisdiction to

review the agency’s failure to reopen sua sponte.     This

argument is unavailing as the Supreme Court “express[ed] no

opinion on whether federal courts may review the Board’s

decision not to reopen removal proceedings sua sponte.”       

n.18.   After Kucana, this Court has reiterated that

it has limited jurisdiction to review the BIA’s decisions

not to reopen proceedings sua sponte.    See Luna v. Holder,

--- F.3d ---, 

, at *10 (2d Cir. Mar. 3, 2011);

Duarte-Ceri v. Holder, 

, 87 (2d Cir. 2010)

(refusal to reopen sua sponte is “a discretionary decision

that is normally not reviewable by the Courts of Appeals”).

Accordingly, under the circumstances of this case, we lack

jurisdiction to review the BIA’s discretionary refusal to

reopen Tavarez’s proceedings sua sponte.    See 

; 

.

    Even if the Court had jurisdiction, Tavarez cannot

demonstrate that the BIA abused its discretion in denying

his untimely motion to reopen.    See Kaur v. BIA, 

, 233 (2d Cir. 2005) (per curiam).   Tavarez does not

challenge the BIA’s findings that he (1) missed numerous

deadlines to apply for relief under § 212(c) of the

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Immigration and Nationality Act and, in particular, failed

to explain in his September 16, 2009 motion to reopen why he

missed the deadline for filing a special motion to apply for

§ 212(c) relief, see 8 C.F.R. § 1003.44(h) (reopening period

ended on April 26, 2005); (2) did not raise a colorable

ineffective assistance of counsel claim; and (3) did not

provide the appropriate application for relief and all

supporting documentation.   Those arguments therefore may be

deemed waived.   See Yueqing Zhang v. Gonzales, 

,

541 n.1, 545 n.7 (2d Cir. 2005).

    Tavarez argues that the BIA erred by ignoring his

argument that he should no longer be considered an aggravated

felon following the Supreme Court’s decision in Lopez v.

Gonzales, 

(2006).   Tavarez has provided no

explanation for the nearly three-year delay in filing his

motion to reopen after the Lopez decision issued.

Nevertheless, assuming, arguendo, that Tavarez is no longer

an aggravated felon, he has not established that reopening

was warranted.   Notwithstanding the drug conviction

underlying his aggravated felon status, Tavarez remains

removable on the basis of a firearms conviction, which would

require an Immigration and Nationality Act § 212(c) waiver

and adjustment of status.   See Matter of Azurin, 23 I. & N.

                                4
Dec. 695, 697 (BIA 2005).   In his motion to reopen Tavarez

did not establish his prima facie eligibility for adjustment

of status.   See 8 C.F.R. § 1003.2(c) (providing that a motion

to reopen must be accompanied by the appropriate application

for relief and all supporting documentation).   Tavarez’s

argument that reopening is required because his status as an

aggravated felon may carry future collateral consequences is

unavailing because it is speculative, and he may avoid the

longer bar to re-entry that results from his aggravated felon

status by applying for a waiver from the Attorney General.

See 8 U.S.C. § 1182(a)(9)(A)(iii).

    For the foregoing reasons, the petition for review is

DISMISSED.


                            FOR THE COURT:
                            Catherine O’Hagan Wolfe, Clerk




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