     16-2843
     Juarez-Munoz v. Sessions
                                                                                 BIA
                                                                          Montante, IJ
                                                                         A200 562 138
                                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 17th day of November, two thousand
 5   seventeen.
 6
 7   PRESENT: DENNIS JACOBS,
 8            GERARD E. LYNCH,
 9            RAYMOND J. LOHIER, JR.,
10                 Circuit Judges.
11   _____________________________________
12
13   FRANCISCO RONALDI JUAREZ-MUNOZ,
14            Petitioner,
15
16                     v.                                      16-2843
17                                                             NAC
18   JEFFERSON B. SESSIONS III,
19   UNITED STATES ATTORNEY GENERAL,
20            Respondent.
21   _____________________________________
22
23   FOR PETITIONER:                       Jose Perez, Syracuse, NY.
24
25   FOR RESPONDENT:                       Chad A. Readler, Acting Assistant
26                                         Attorney General; Cindy S.Ferrier,
27                                         Assistant Director; Song E. Park,
28                                         Senior Litigation Counsel, Office
29                                         of Immigration Litigation, United
30                                         States Department of Justice,
31                                         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.

 5          Petitioner Francisco Ronaldi Juarez-Munoz, a native and

 6   citizen of Mexico, seeks review of a July 13, 2016,

 7   decision of the BIA affirming a June 4, 2015, decision of

 8   an Immigration Judge (“IJ”) denying Juarez-Munoz’s motions

 9   to reconsider and reopen.         In re Francisco Ronaldi Juarez-

10   Munoz, No. A 200 562 138 (B.I.A. July 13, 2016), aff’g No. A

11   200 562 138 (Immig. Ct. Buffalo, N.Y. June 4, 2015).                We

12   assume the parties’ familiarity with the underlying facts

13   and procedural history in this case.

14          We review the decision of the IJ as supplemented by the

15   BIA.     See Yan Chen v. Gonzales, 417 F.3d 268, 271 (2d Cir.

16   2005).      We review the denial of motions to reconsider and

17   reopen for abuse of discretion.          Jian Hui Shao v. Mukasey,

18   546 F.3d 138, 173 (2d Cir. 2008).          “An abuse of discretion

19   may    be   found   in   those   circumstances    where   the   .    .    .

20   decision     provides    no   rational   explanation,     inexplicably

21   departs     from    established    policies,     is   devoid    of       any

                                         2
 1   reasoning,     or   contains     only   summary     or   conclusory

 2   statements.”     Kaur v. BIA, 413 F.3d 232, 233 (2d Cir. 2005)

 3   (internal quotation marks omitted).

 4       A motion to reconsider must be filed within 30 days of

 5   the “entry of a final administrative order of removal,” and

 6   a motion to reopen must be filed within 90 days.         8 U.S.C.

 7   § 1229a(c) (6)(B), (7)(C)(i); 8 C.F.R. § 1003.23(b)(1).        At

 8   Juarez-Munoz’s request, the IJ issued a voluntary departure

 9   order in October 2014.    That order became a “final

10   administrative order of removal” 30 days later, in November

11   2014, when Juarez-Munoz’s time to appeal to the BIA

12   expired.   8 U.S.C. § 1101(a)(47)(B) (providing, in relevant

13   part, that a removal order becomes final on “the expiration

14   of the period in which the alien is permitted to seek

15   review of such order by the [BIA]”).      Juarez-Munoz’s

16   February 2015 motion to reconsider and April 2015 motion to

17   reopen were therefore untimely.

18       The agency denied sua sponte reconsideration based on

19   Juarez-Munoz’s      concession    of    alienage.        We   lack

20   jurisdiction to review a decision declining to reconsider

21   or reopen sua sponte absent a misperception of the law,

                                      3
 1   which did not occur here. Mahmood v. Holder, 570 F.3d 466,

 2   469 (2d Cir. 2009); Ali v. Gonzales, 448 F.3d 515, 518 (2d

 3   Cir. 2006).

 4       Juarez-Munoz argues that the BIA misperceived the law

 5   with regard to the Fourth Amendment claim that his

 6   concession of alienage was illegally obtained, and must

 7   therefore be suppressed.   But suppression is unwarranted

 8   where a concession of alienage is “not fruit of the

 9   illegality, but of an intervening act of free will, i.e.,

10   an alien’s own choice to concede his removability.”

11   Vanegas-Ramirez v. Holder, 768 F.3d 226, 236 (2d Cir. 2014)

12   (internal quotation marks omitted).   As in Vanegas-Ramirez,

13   Juarez-Munoz’s concession was the product of a tactical

14   decision to obtain voluntary departure and avoid the

15   stigmas and penalties associated with forced removal.     Id.

16   at 235; see Thapa v. Gonzales, 460 F.3d 323, 328 (2d Cir.

17   2006) (describing benefits of voluntary departure).

18   Moreover, the agency did not err in finding an unsigned

19   affidavit to be insufficient evidence of a Fourth Amendment

20   violation.    See Maldonado v. Holder, 763 F.3d 155, 161 (2d

21   Cir. 2014) (explaining that “unless a petitioner is first

                                    4
 1   required to submit an affidavit that could support a basis

 2   for excluding the evidence, an evidentiary hearing would be

 3   required in every deportation proceeding” (internal

 4   quotation marks and citation omitted)).

 5       Juarez-Munoz sought reopening so that he could seek a

 6   favorable exercise of prosecutorial discretion in the form

 7   of Deferred Action for Parents of Americans and Lawful

 8   Permanent Residents, a program the Government has

 9   rescinded.   Accordingly, the motion sought relief that no

10   longer exists.

11       For the foregoing reasons, the petition for review is

12   DENIED.   As we have completed our review, Juarez-Munoz’s

13   request for stay of removal is DISMISSED as moot.

14                               FOR THE COURT:
15                               Catherine O’Hagan Wolfe, Clerk




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