Filed: Aug. 13, 2019
Latest Update: Mar. 03, 2020
Summary: 14-4247 Hernandez-Bautista v. Barr BIA A073 467 248 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 NOT
Summary: 14-4247 Hernandez-Bautista v. Barr BIA A073 467 248 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 NOTA..
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14-4247
Hernandez-Bautista v. Barr
BIA
A073 467 248
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 TO A SUMMARY
ORDER MUST SERVE A COPY OF IT ON ANY PARTY NOT REPRESENTED BY COUNSEL.
1 At a stated term of the United States Court of Appeals
2 for the Second Circuit, held at the Thurgood Marshall
3 United States Courthouse, 40 Foley Square, in the City of
4 New York, on the 13th day of August, two thousand nineteen.
5
6 PRESENT:
7 GUIDO CALABRESI,
8 BARRINGTON D. PARKER,
9 DEBRA ANN LIVINGSTON,
10 Circuit Judges.
11 _____________________________________
12
13 TEODORA HERNANDEZ-BAUTISTA,
14 Petitioner,
15
16 v. 14-4247
17 NAC
18
19 WILLIAM P. BARR, UNITED STATES
20 ATTORNEY GENERAL,
21 Respondent.
22 _____________________________________
23
24 FOR PETITIONER: Mark J. Devine, Charleston, SC.
25
26 FOR RESPONDENT: Chad A. Readler, Acting Assistant
27 Attorney General; Leslie McKay,
28 Senior Litigation Counsel; Siu P.
29 Wong, Trial Attorney, Office of
30 Immigration Litigation, United
31 States Department of Justice,
32 Washington, DC.
1 UPON DUE CONSIDERATION of this petition for review of a
2 Board of Immigration Appeals (“BIA”) decision, it is hereby
3 ORDERED, ADJUDGED, AND DECREED that the petition for review
4 is DENIED in part and DISMISSED in part.
5 Petitioner Teodora Hernandez-Bautista, a native and
6 citizen of Mexico, seeks review of an October 17, 2014,
7 decision of the BIA denying her motion to reopen. In re
8 Teodora Hernandez-Bautista, No. A 073 467 248 (B.I.A. Oct. 17,
9 2014). We assume the parties’ familiarity with the
10 underlying facts and procedural history in this case.
11 We review the BIA’s denial of a motion to reopen for
12 abuse of discretion. Ali v. Gonzales, 448 F.3d 515, 517 (2d
13 Cir. 2006). A motion to reopen must be filed no later than
14 90 days after the final administrative decision is rendered.
15 8 U.S.C. § 1229a(c)(7)(C)(i); 8 C.F.R. § 1003.2(c)(2).
16 Hernandez-Bautista’s motion—filed more than ten years after
17 her appeal was dismissed and she was granted voluntary
18 departure—was thus untimely, and she identified no exceptions
19 to the time limit. See 8 U.S.C. § 1229a(c)(7)(C)(ii)
20 (exception for asylum); 8 C.F.R. § 1003.2(c)(3) (listing
21 exceptions). Accordingly, the only basis for reopening was
2
1 the BIA’s authority to reopen sua sponte.
2 The BIA has authority to reopen sua sponte despite the
3 time and number limitations, see 8 C.F.R. § 1003.2(a), but we
4 lack jurisdiction to review the “entirely discretionary”
5 decision declining to do so, see Ali, 448 F.3d at 518.
6 Although we may remand if the BIA “misperceived the legal
7 background and thought, incorrectly, that a reopening would
8 necessarily fail,” that exception does not apply here.
9 Mahmood v. Holder,
570 F.3d 466, 469 (2d Cir. 2009). The BIA
10 did not misperceive the law in declining to reopen Hernandez-
11 Bautista’s proceedings.
12 In her motion to reopen, Hernandez-Bautista conceded that
13 she was inadmissible under 8 U.S.C. § 1182(a)(9)(C)(i). In
14 denying her motion, the BIA relied on subsection (II) of that
15 provision, which states that “[a]ny alien who . . . has been
16 ordered removed . . . and who enters or attempts to reenter
17 the United States without being admitted is inadmissible.”
18 Hernandez-Bautista argues that she did not accrue enough
19 unlawful presence to qualify as inadmissible under 8 U.S.C.
20 § 1182(a)(9)(C)(i). But she misunderstands the statute.
21 Although subsection (I) of the provision is limited to aliens
3
1 who aggregate over one year of unlawful presence, subsection
2 (II) does not have the aggregate time requirement.
3 Accordingly, Hernandez-Bautista has not shown that the BIA
4 misperceived the law in finding her inadmissible under 8
5 U.S.C. § 1182(a)(9)(C)(i)(II). See Mahmood, 570 F.3d at 469.
6 Further, an alien who is inadmissible under 8 U.S.C.
7 § 1182(a)(9)(C)(i)(II) cannot retroactively apply for
8 permission to reapply for admission. See Delgado v. Mukasey,
9
516 F.3d 65, 72-74 (2d Cir. 2008) (citing In re Torres-Garcia,
10 23 I. & N. Dec. 866 (BIA 2006)). Therefore, given Hernandez-
11 Bautista’s concessions in her motion to reopen regarding her
12 departure and reentry without permission, and that she was
13 inadmissible under 8 U.S.C. § 1182(a)(9)(C)(i), the BIA did
14 not misperceive the law when it determined that she was
15 inadmissible under § 1182(a)(9)(C)(i)(II) and could not apply
16 for relief nunc pro tunc.
17 We also lack jurisdiction to consider Hernandez-
18 Bautista’s remaining argument. She challenges the
19 constitutionality of the revocation of her 1991 visa
20 petition, but the BIA found that this argument did not
21 implicate an exception to the time limit on motions to reopen
4
1 or constitute an exceptional circumstance. As noted above,
2 Hernandez-Bautista’s motion to reopen did not implicate any
3 exception to the timing requirement. We lack jurisdiction
4 to further review the BIA’s conclusions that circumstances
5 were not so exceptional as to warrant sua sponte reopening.
6 See Ali, 448 F.3d at 518.
7 For the foregoing reasons, the petition for review is
8 DENIED in part and DISMISSED in part. Any pending request
9 for oral argument in this petition is DENIED in accordance
10 with Federal Rule of Appellate Procedure 34(a)(2), and Second
11 Circuit Local Rule 34.1(b).
12 FOR THE COURT:
13 Catherine O’Hagan Wolfe,
14 Clerk of Court
15
5
