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Jose Dennis Alvarado-Canas, A046 041 673 (BIA Feb. 14, 2014)

Jose Dennis Alvarado-Canas, A046 041 673 (BIA Feb. 14, 2014)

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In this unpublished decision, the Board of Immigration Appeals (BIA) declined to reopen proceedings sua sponte upon finding the Supreme Court’s decision in Carachuri-Rosendo v. Holder, 560 U.S. 563 (2010), impacted the respondent’s eligibility for relief rather than his underlying removability. The Board also stated that while it did not base its decision on the timing of the respondent’s motion, “diligence in filing a motion could be a relevant factor to consider in determining whether sua sponte reopening is warranted.” The decision was written by Member Ellen Liebowitz.

Looking for IRAC’s Index of Unpublished BIA Decisions? Visit www.irac.net/unpublished/index
In this unpublished decision, the Board of Immigration Appeals (BIA) declined to reopen proceedings sua sponte upon finding the Supreme Court’s decision in Carachuri-Rosendo v. Holder, 560 U.S. 563 (2010), impacted the respondent’s eligibility for relief rather than his underlying removability. The Board also stated that while it did not base its decision on the timing of the respondent’s motion, “diligence in filing a motion could be a relevant factor to consider in determining whether sua sponte reopening is warranted.” The decision was written by Member Ellen Liebowitz.

Looking for IRAC’s Index of Unpublished BIA Decisions? Visit www.irac.net/unpublished/index

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04/09/2014

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U.S.

Department of Justice Executive Office for Immigration Review
Board of!mmigra1io11 Appeals Office of tire Clerk
5107 /,r:eslwrg l,ike, Suite 21100 Falls C/111rcl1. Virginia 20530

Gonzalez, Raed, Esq. Gonzalez Olivieri LLC 2200 Southwest Frwy., Suite 550 Houston, TX 77098

DHS/CIS - Houston, TX 126 Northpoint Drive, Rm. 2005 Houston, TX 77060

Immigrant & Refugee Appellate Center | www.irac.net

Name: ALVARADO-CANAS, JOSE DEN ...

A 046-041-673

Date of this notice: 2/14/2014

Enclosed is a copy of the Board's decision and order in the above-referenced case. Sincerely,

DclYUU..- cClJV\_)
Donna Carr Chief Clerk

Enclosure Panel Members: Liebowitz, Ellen C

I

I

Userteam: Docket

For more unpublished BIA decisions, visit www.irac.net/unpublished

Cite as: Jose Dennis Alvarado-Canas, A046 041 673 (BIA Feb. 14, 2014)

U.S. Department of Justice Executive Office for Immigration Review
Board oflmmigration Appeals

Qfi f ce

of the Clerk

Fall.\ Church. Virginia 20530

5107 Lee.�/Jurg Pike, Suire 2000

ALVARADO-CANAS, JOSE DENNIS A046-041-673 15850 EXPORT PLAZA DRIVE HOUSTON, TX 77032-0000

DHS/CIS - Houston, TX 126 Northpoint Drive, Rm. 2005 Houston, TX 77060

Immigrant & Refugee Appellate Center | www.irac.net

Name: ALVARADO-CANAS, JOSE DEN ...

A 046-041-673

Date of this notice: 2/14/2014

Enclosed is a copy of the Board's decision in the above-referenced case. This copy is being provided to you as a courtesy. Your attorney or representative has been served wilh this ff the attached decision orders that you be decision pursuant to 8 C.F.R. § 1292.S(a).

removed from the United States or affirms an Immigration Judge's decision ordering that you be removed, any petition for review of the attached decision must be filed with and received by the appropriate court of appeals within 30 days or the date of the decision. Sincerely,

DciYU'UL Ca.!'vV
Donna Carr Chief Clerk

Enclosure Panel Members: Liebowitz, Ellen C

c:llw<1rzl Userteam:

no kr1t

Cite as: Jose Dennis Alvarado-Canas, A046 041 673 (BIA Feb. 14, 2014)

U.S. Department of Justice
Executive Office for Immigration Review Falls Church, Virginia 20530

Decision of the Board of Immigration Appeals

File:

A046 041 673 - Houston, TX

Date:

In re: JOSE DEl\TNIS ALVARADO-CANAS IN REMOVAL PROCEEDINGS APPEAL ON BEHALF OF RESPONDENT: ON BEHALF OF DHS: Raed Gonzalez, Esquire Alex D. Perez Assistant Chief Counsel APPLICATION: Reopening

.FEB 1 4 2014

Immigrant & Refugee Appellate Center | www.irac.net

The respondent, a native and citizen of El Salvador, appeals the Immigration Judge's October 18, 2013, decision denying his untimely motion to reopen his removal proceedings. 1 The appeal will be dismissed. We review for clear error the findings of fact, including the detennination of credibility, made by the Immigration Judge. 8 C.F .R. § 1003.1( d)(3)(i). We review de novo all other issues, including whether the parties have met the relevant bmden of proof, and issues of discretion. 8 C.F.R. § 1003 . l(d)(3)(ii). We affirm the Immigration Judge's decision to deny the respondent's untimely motion to reopen. There is no dispute that the respondent's motion to reopen was untimely, and the Immigration Judge c01Tectly found that the respondent did not meet any of the exceptions to the 2 filing deadline, as found in 8 C.F.R. § 1003.23(b)(4). We also conclude that the Immigration Judge committed no error in concluding that sua sponte reopening is not warranted based upon a change in law. sparingly, is reserved for truly exceptional situations). decision in

See Matter of G-D-,

22 I&N

Dec. 1132, 1133-35 (BIA 1999) (noting that the Board's sua sponte authority, which is invoked The United States Supreme Court

Carachuri-Rosendo

v.

Holder, 560 U.S.

563 (2010), does not represent a fundamental

change of law with regard to the respondent's removability. Contrary to the respondent's contention on appeal, he was not ordered removed due to a "faulty interpretation of the law."
1

The respondent had also filed with the Immigration Judge a motion for reconsideration of the Insofar as the Immigration Judge had denied the motion for

denial of his motion to reopen.

reconsideration, our detem1ination that the Immigration Judge committed no error in denying the motion to reopen is dispositive of the respondent's appeal of the denial of his motion for reconsideration.
2

An order of removal was entered against the respondent on February 2, 2005, and the The respondent

respondent was physically removed from the United States on March 8, 2005. illegally reentered the country in or around 2007.

Cite as: Jose Dennis Alvarado-Canas, A046 041 673 (BIA Feb. 14, 2014)

A046 041 673

See

Resp. Br. at l 7-1 8

.

He was removed as having been convicted of a violation of any The Supreme Comi decision in

State law relating to a controlled substance under section 237(a)(2)(B)(i) of the Immigration and Nationality Act, 8 U.S.C. § 1227(a)(2)(B)(i).

Carachuri­

Rosendo

v.

Holder, supra,

did not affect the respondent's removability under this section of the

Act, and thus we disagree with his contention that his prior order resulted in a gross miscarriage of justice.

Immigrant & Refugee Appellate Center | www.irac.net

We do acknowledge, however, that it appears that under

Carachuri-Rosendo

v.

Holder, supra,

the respondent's multiple simple possession drug offenses would no longer qualify as an aggravated felony, which serves as a statutory bar to cancellation of removal under section 240A(a)(3) of the Act, 8 U.S.C. § 1229b(a)(3). We are not persuaded, however, that this change in law, which impacts solely the respondent's eligibility to seek a discretionary form of relief, is sufficiently compelling, such that the extraordinary intervention of our sua sponte authority is 3 warranted. See Matter of G-D-, supra, at 1133-35. In reaching this conclusion, we also note that the respondent has neither a11eged nor presented evidence of any positive equities that would favor a grant of cancellation of removal, or any other relief, as a matter of discretion if his motion to reopen were granted sua sponte. To support his argument that sua sponte reopening is warranted in this matter, the respondent cites to two unpublished Board decisions, in which the Board sua sponte granted each alien's motion to reopen.

See Resp.

Br. at 11-12. We note, however, that unpublished Board decisions

do not carry any precedential value, and further, unlike here, the two unpublished decisions 4 involved a change in law that impacted the aliens' removability. The following order will be entered. ORDER: The appeal is dismissed.

3

The respondent has not challenged as being clearly erroneous the Immigration Judge's findings

that during his February 2, 2005, hearing, the Immigration Judge advised him of the right to have a hearing regarding his eligibility for relief from removal, and that the respondent elected to not have a subsequent hearing but, rather, proceed with removal and waive appeal, thus undercutting removal (I.J. at 3).
4

any claim that the previous Immigration Judge failed to advise him of any potential relief from

On appeal, tbe respondent asserts that the Immigration Judge e1Toneously imposed a 90 day While diligence in filing a motion could

filing requirement on his motion to reopen sua sponte. not base our decision on this factor. 2

be a relevant factor to consider in determining whether sua sponte reopening is warranted, we do

Cite as: Jose Dennis Alvarado-Canas, A046 041 673 (BIA Feb. 14, 2014)

UNITED STl. TES DEPARTMENT OF JUSTICE EXECUTIVE OFFICE FOR IMMIGRATION REVIEW IMMIGRATION COURT 5520 GREENS ROAD HOUSTON, TX 77032

Immigrant & Refugee Appellate Center | www.irac.net

GONZALEZ OLIVIERI LLC. GONZALEZ, HOUSTON, ESQ., TX RAED #550 2200 SOUTHWEST FWY, 77098 FILE A 046-041-673 DATE: Oct 18, 2013

IN THE MATTER OF ALVARADO-CANAS, JOSE DENNIS

UNABLE TO FORWARD - NO ADDRESS PROVIDED ATTACHED IS A COPY OF THE DECISION OF THE IMMIGRATION JUDGE. THIS DECISION

IS FINAL UNLESS AN APPEA.L rs FILED WITH THE BOARD OF IMMIGRATION APPE?..LS

WITHIN 30 CALENDAR DAYS OF THE DATE OF THE MAILING OF THIS WRITTEN DECISION. SEE THE ENCLOSED FORMS AND INSTRUCTIONS FOR PROPERLY PREPARING YOUR APPEAL. YOUR NOTICE OF APPEAL, MUST BE MAILED TO: ATTACHED DOCUMENTS, OFFICE OF THE CLERK 5107 Leesburg Pike, VA Suite 2000 FALLS CHURCH, 20530 AND FEE OR FEE WAIVER REQUEST BOARD OF IMMIGRATION APPEALS

ATTACHED IS A COPY OF THE DECISION OF THE IMMIGRATION JUDGE AS THE RESULT OF YOUR FAILURE TO APPEAR AT YOUR SCHEDULED DEPORTATION OR REMOVAL HEARING. THIS DECISION IS FINAL UNLESS A MOTION TO REOPEN IS FILED IN ACCORDANCE WITH SECTION 242B(c) (3) SECTION 1252B(c} (3) 8 u.s.c. TO REOPEN, OF THE IMMIGRATION AND NATIONALITY ACT, IN REMOVAL PROCEEDINGS. 8 U.S.C. IN DEPORTATION PROCEEDINGS OR SECTION 240(c} (6), IF YOU FILE A MOTION

SECTION 1229a(c) (6)

YOUR MOTION MUST BE FILED WITH THIS COURT: IMMIGRATION COURT 5520 GREENS ROAD HOUSTON, TX 77032

OTHER:

Jl>AQK£i.· �
COURT CLERK IMMIGRATION COURT CC: MARK EVANS, HOUSTON, TX, A.D.C. ROOM 2020 770600000 126 NORTHPOINT DR., FF

UNITED STATES DEPARTMENT OF JUSTICE EXECUTIVE OFFICE FOR IMMIGRATION REVIEW IMMIGRATION COURT HOUSTON SERVICE PROCESSING CENTER HOUSTON, TEXAS IN THE MATTER OF Jose Dennis ALVARADO-CANAS, Respondent. ) ) ) File No. A046-041-673 IN REMOVAL PROCEEDINGS

Immigrant & Refugee Appellate Center | www.irac.net

)
)

ON BEHALF OF THE RESPONDENT: Raed Gonzalez, Esq. 2200 Southwest Freeway, Suite 550 Houston, TX 77098

ON BEHALF OF THE GOVERNMENT: Alex D. Perez, Assistant Chief Counsel Department of Homeland Security

MEMORANDUM AND DECISION OF THE IMMIGRATJON JUDGE I. Factual and Procedural History Respondent, a native and citizen of El Salvador, was admitted to the United States as a lawful permanent resident on April 16, 1997. Exh. 1. Respondent was convicted of possession of marijuana tlu·ee times in Texas: on December 6, 2002, April 26, 2004, and May 10, 2004. Jd. On February 2, 2005, the Immigration Court ordered Respondent removed from the United States to El Salvador pursuant to § 23 7(a)(2)(B)(i) of the Immigration and Nationality Act (INA), as an alien who, after admission, was convicted of a violation of a state law relating to a controlled substance other than a single offense involving possession, for one's own use, of 30 grams or less of marijuana. On March 8, 2005, Respondent was physically removed to El Salvador. OHS Brief in Opposition to Respondent's Motion at l (Sept. 20, 2013). The Department of Homeland Security (DHS) alleges that Respondent illegally reentered the United States in 2007. DHS Brief in Opposition to Respondent's Motion at 1. On September 13, 2013, Respondent filed the present motion to reopen removal proceedings, asking that the Com1 reopen its September 2, 2005 decision, based on subsequent changes in law in the United States Court of Appeals for the Fifth Circuit. On September 20, 2013, DHS filed a brief in opposition. II. Analysis On June 14, 20 I 0-approximately five years after Respondent was ordered removed from the United States-the United States Supreme Court held, in contrast to prior Fifth Circuit law, that a second or subsequent conviction for simple drug possession does not comprise an "aggravated felony" under INA§ 101(a)(43) unless the prior offense is an element of the second conviction. See Carachuri-Rosenclo
v.

Holder, 130 S.Ct. 2577, 2580 (2010).

Based on the intervening decision in Carachuri-Rosendo, Respondent asse1ts that he is now eligible to apply for Cancellation of Removal under INA § 240A. Respondent's Motion t o Reopen a t 2. Respondent thus requests that the Court reopen his case sua sponte, rescind the 2005 order of removal, reinstate his status as a lawful permanent resident, and allow him to apply for Cancellation of Removal. Id. at 2-3. Motions to reopen are governed by INA § 240(c)(7) and 8 C.F.R. § 1003.23(b). order. Only

one motion to reopen is allowed, and it must be filed within 90 days of a final administrative INA § 240(c)(7)(A). Respondent's motion to reopen was filed on September 13, 2013, more than 8 years after the final administrative order. Therefore, it was filed untimely. The time and numerical limitations set forth in INA § 240(c)(7)(C) and C.F.R.

Immigrant & Refugee Appellate Center | www.irac.net

§ 1003.23(b) do not apply to (1) motions to reopen to apply for asylum or withholding of removal based on changed country conditions arising in the country of nationality or the country to which removal has been ordered, if such evidence is material and was not available and could not have been discovered or presented at the previous proceeding, (2) motions to reopen certain in absentia orders of removal, and (3) motions to reopen that are agreed upon by all parties and jointly filed. See TNA § 240(c)(7)(C); 8 C.F.R. § 1003.23(b)(4)(i)-(iv). Because Respondent's motion to reopen does not fall within one of these exceptions, the untimeliness of his motion to reopen is not excused. The Court notes that Respondent, in part contends that he did not timely file his motion to reopen in part due to the "departure bar" regulation, which states that: A motion to reopen or to reconsider shall not be made by or on behalf of a person who is the subject of removal, depo1tation, or exclusion proceedings subsequent to his or her departure from the United States. Any departure from the United States, including the depmiation or removal of a person who is the subject of exclusion, deportation, or removal proceedings, occuning after the filing of a motion to reopen or a motion to reconsider shall constitute a withdrawal of such motion. 8 C.F.R. § 1003.23(b)(l). On September 27, 2012, the Fifth Circuit held that the "depruture bar" regulation impermissibly conflicts with INA § 240(c)(7)(A) and is thus ultra vires, with respect to an alien's statutory right to file one motion to reopen. See Garc i a- Carias
v.

Holder, 697 F.3d 257,

264 (5th Cir. 2012). Noting that under Garcia-Carias, Respondent has the right to file a motion to reopen despite the fact that he was removed from the United States, Respondent contends that the Court should reopen proceedings sua sponte in the interest of justice. The Court has sua sponte discretion to reopen ru1y case in which it has made a decision, unless jurisdiction is vested in the Board. See 8 C.F.R. § 1003.23(b)(l). Sua sponte authority is to be invoked sparingly and not as a general remedy for any hardships created by enforcement of the time and number limits in the regulations; indeed, it is an extraordinary remedy reserved for truly exceptional situations. Matter of G-D-, 22 I&N Dec. 1132, 1133-34 (BIA 1999). For example, a fundamental change in the law, not merely an incremental development, would A046-04 l -673 2

qualify as an exceptional situation that merits the use of sua sponte authority. Id. at 1135; see Matter of X-G-W-, 22 I&N Dec. 71 (BIA 1998) (holding that sua sponte reopening was wananted because the enactment of IIRIRA significantly changed applicable asylum law four months after the respondent's appeal was denied). It is Respondent's burden to persuade the Court that his circumstances are truly exceptional before the Comt will intervene. See G-D-, 2 2 I&N Dec. at 1134; Matter o fBeckford, 22 I&N Dec. 1216, 1218 (BIA 2000). Respondent asse1ts that he warrants sua sponte reopening in the interests of justice because the Immigration Judge presiding over Respondent's 2005 proceedings purp01tedly did not inform Respondent of any potential relief from removal, and because of a fundamental change in the law. Respondent's Motion to Reopen at 4-7, Tab D. With respect to Respondent's contention that the Immigration Judge did not inform him of potential relief from removal, the recording of Respondent's February 2, 2005 Master Calendar Hearing elucidates that the Immigration Judge did, in fact, advise Respondent that he "appears to be one of the few permanent residents who has a right to fill out papers and have a hearing about keeping [his] residence." The Immigration Judge then specifically asked Respondent whether he wanted to Consequently, the Court discounts have a subsequent hearing on his eligibility for relief from removal or proceed with his removal. Respondent chose removal, and waived his right to appeal. Respondent's argument. On the issue of a fundamental change in the law, even though both Carachuri-Rosendo and Garcia-Carias were decided after the final administrative order was issued in Respondent's case, Respondent has not sufficiently demonstrated why he waited more than 90 days after the September 27, 2012 Garcia-Carias decision to file the instant motion to reopen. Although Respondent claims that that he did not become aware of the Carachuri-Rosendo and Garcia­ Carias decisions until 2013, when his family consulted an attorney, the Court finds that Respondent's purported lack of knowledge does not comprise an "exceptional circumstance" wan-anting sua sponte reopening and the obviation of the time and numerical limitations on motions to reopen. Consequently, the Court declines to exercise its sua sponle authority in this case. Accordingly, the following order shall be issued: III. Order IT IS HEREBY ORDERED that Respondent's

Immigrant & Refugee Appellate Center | www.irac.net

Date

S ul Greenstein Immigration Judge

A046-041-673

3

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