11-4867
    Pereyra-Martinez v. Holder
                                                                                      BIA
                                                                              A031 021 291
                                 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.

         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 16th day of April, two thousand thirteen.

    PRESENT:
             ROBERT A. KATZMANN,
             RICHARD C. WESLEY,
             GERARD E. LYNCH,
                  Circuit Judges.
    _____________________________________

    JOSE PEREYRA-MARTINEZ,
             Petitioner,

                        v.                                    11-4867
                                                              NAC
    ERIC H. HOLDER, JR., UNITED STATES
    ATTORNEY GENERAL,
             Respondent.
    _____________________________________

    FOR PETITIONER:                      Alexander Arandia, Forest Hills, N.Y.

    FOR RESPONDENT:                      Stuart F. Delery, Acting Assistant
                                         Attorney General; Thomas B. Fatouros,
                                         Senior Litigation Counsel; Robert
                                         Michael Stalzer, Trial Attorney, Office
                                         of Immigration Litigation, United
                                         States Department of Justice,
                                         Washington, DC
    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 Jose Pereyra-Martinez, a native and citizen of

the Dominican Republic, seeks review of an October 26, 2011,

order of the BIA denying his motion to reopen and reconsider.

In re Jose Pereyra-Martinez, No. A031 021 291 (B.I.A. Oct. 26,

2011).   We assume the parties’ familiarity with the underlying

facts and procedural history of the case.

    We lack jurisdiction to review a final order of

deportation, including an order denying a motion to reopen and

reconsider, issued against an alien such as Pereyra-Martinez

who was found deportable by reason of having committed an

offense relating to a controlled substance.   See 8 U.S.C.

§ 1252(a)(2)(C); see also Santos-Salazar v. U.S. Dep’t of

Justice, 

, 102-03 (2d Cir. 2005); Durant v. INS,

, 115 (2d Cir. 2004).   However, we retain

jurisdiction to review colorable constitutional claims or

questions of law.   See 8 U.S.C. § 1252(a)(2)(D).   Pereyra-

Martinez raises no colorable constitutional claims or

questions of law in challenging the BIA’s denial of his


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motion.   See Barco-Sandoval v. Gonzales, 

, 40 (2d

Cir. 2008).

    It is undisputed that Pereyra-Martinez’s 2011 motion,

filed more than seven years after the agency’s deportation

order became final, was untimely.   See 8 U.S.C.

§ 1229a(c)(6),(7).   Because the untimely filing of Pereyra-

Martinez’s motion was not excused by any statutory exception,

see 8 U.S.C. § 1229a(c)(7)(C)(ii)-(iv), his motion “could only

be considered upon exercise of the Agency’s sua sponte

authority.”   Mahmood v. Holder, 

, 469 (2d Cir.

2009); 8 C.F.R. § 1003.2(a).   Such a decision is “entirely

discretionary” and beyond the scope of our review.     Ali v.

Gonzales, 

, 518 (2d Cir. 2006).     Nevertheless,

“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.”   Mahmood, 570 F.3d at 469; see

also Aslam v. Mukasey, 

, 115 (2d Cir. 2008);

8 U.S.C. § 1252(a)(2)(D).

    Here, there is no indication that the BIA misperceived

the law in declining to reopen or reconsider.    Indeed, as the


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BIA noted, contrary to Pereyra-Martinez’s argument, the

Supreme Court’s decision in Lopez v. Gonzales, 

(2006), had no bearing on Pereyra-Martinez’s deportability.

Lopez addressed the issue of whether a state conviction

constitutes an aggravated felony under the Immigration and

Nationality Act. See id., at 53, 60.    Here, Pereyra-Martinez

was charged as subject to deportation as an alien convicted of

a law relating to a controlled substance, not an aggravated

felony.   Similarly, Pereyra-Martinez’s unexhausted argument

that the Supreme Court’s decision in Vartelas v. Holder, 

 (2012), provided a basis for sua sponte reopening

is frivolous because, unlike the petitioner in Vartelas,

Pereyra-Martinez was not found deportable because of a

retroactive application of the travel restraint in the Illegal

Immigration Reform and Immigrant Responsibility Act.     See id.

at 1488-90.

    We decline to consider Pereyra-Martinez’s arguments

regarding the departure bar, as the BIA did not apply that bar

in this case.    See Lin Zhong v. U.S. Dep’t of Justice, 

, 122 (2d Cir. 2007).

    For the foregoing reasons, the petition for review is

DISMISSED.    Pereyra-Martinez’s pending request for oral


                                4
argument is DENIED in accordance with Federal Rule of

Appellate Procedure 34(a)(2), and Second Circuit Local Rule

34(b).

                           FOR THE COURT:
                           Catherine O’Hagan Wolfe, Clerk




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