         12-1002
         Montesquieu v. Holder
                                                                                       BIA
                                                                               A076 553 152
                                 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.

 1            At a stated term of the United States Court of Appeals
 2       for the Second Circuit, held at the Thurgood Marshall United
 3       States Courthouse, 40 Foley Square, in the City of New York,
 4       on the 24th day of October, two thousand thirteen.
 5
 6       PRESENT:
 7                ROBERT D. SACK,
 8                BARRINGTON D. PARKER,
 9                DENNY CHIN,
10                     Circuit Judges.
11       _____________________________________
12
13       PEDRO RAFAEL MONTESQUIEU,
14                Petitioner,
15
16                           v.                                 12-1002
17                                                              NAC
18       ERIC H. HOLDER, JR., UNITED STATES
19       ATTORNEY GENERAL,
20                Respondent.
21       _______________________________________
22
23       FOR PETITIONER:                  Julia Greenberg, New York, New York.
24
25       FOR RESPONDENT:                  Stuart F. Delery, Principal Deputy
26                                        Assistant Attorney General; Ernesto
27                                        H. Molina, Jr., Assistant Director;
28                                        Sheri R. Glaser, Trial Attorney,
29                                        Civil Division, Office of
 1                             Immigration Litigation, United
 2                             States Department of Justice,
 3                             Washington, D.C.
 4
 5       UPON DUE CONSIDERATION of this petition for review of a

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

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

 8   review is DISMISSED.

 9       Pedro Rafael Montesquieu, a native and citizen of the

10   Dominican Republic, seeks review of a February 21, 2012,

11   order of the BIA denying his motion to reopen proceedings.

12   See Pedro Rafael Montesquieu, No. A076 553 152 (B.I.A. Feb.

13   21, 2012).    We assume the parties’ familiarity with the

14   underlying facts, procedural history, and issues presented

15   for review.

16       We lack jurisdiction over a petition for review where

17   the petitioner has been convicted of a controlled substance

18   offense, except to the extent the petitioner presents

19   questions of law or constitutional claims.    See 8 U.S.C.

20   § 1252(a)(2)(C)-(D); Garcia-Padron v. Holder, 558 F.3d 196,

21   198-199 (2d Cir. 2009).    Montesquieu presented evidence that

22   he was pardoned by the State of New York for a 2000

23   conviction for attempted criminal sale of a controlled

24   substance.    Montesquieu does not, however, dispute the



                                     2
 1   finding that he was convicted of criminal possession of

 2   marijuana in 1996, and was inadmissible based on that

 3   conviction.    Accordingly, the jurisdictional bar applies and

 4   our review is limited to constitutional claims or questions

 5   of law regarding the BIA’s denial of reopening.

 6       Montesquieu raises no challenge to the BIA’s denial of

 7   his motion as untimely and number-barred and we see no error

 8   in the BIA’s decision.    An alien seeking to reopen

 9   proceedings is required to file a motion to reopen no later

10   than 90 days after the date on which the final

11   administrative decision was rendered and is permitted to

12   file only one such motion.    See 8 U.S.C. § 1229a(c)(7)(A),

13   (C); 8 C.F.R. § 1003.2(c)(2).       There is no dispute that

14   Montesquieu’s motion to reopen, filed in 2011, was untimely

15   and number-barred because his order of deportation became

16   final in 2008 and he had filed an earlier motion to reopen

17   proceedings.

18       To the extent Montesquieu challenges the BIA’s refusal

19   to reopen the proceedings sua sponte, we lack jurisdiction

20   over that decision, absent an indication that the agency

21   misperceived the legal background of the case in declining

22   to reopen sua sponte.    See Mahmood v. Holder, 570 F.3d 466,


                                     3
 1   469 (2d Cir. 2009).     The record indicates that Montesquieu

 2   was charged with inadmissibility, not deportability, and

 3   thus the pardon did not affect the finding of removability.

 4   See 8 U.S.C. § 1227(a)(2)(A)(vi) (permitting waiver of

 5   removability where the alien received a pardon); but see

 6   generally 8 U.S.C. § 1182 (listing no waiver for pardoned

 7   offenses).   Moreover, the 1996 marijuana conviction

 8   continued to be an independent basis for inadmissibility.

 9       Montesquieu argues that the BIA misperceived the legal

10   background because it failed to consider that the pardon

11   rendered him eligible for cancellation of removal, and that

12   exceptional circumstances, in the form of hardship to his

13   family, warranted reopening.     He failed, however, to raise

14   those arguments in his motion to reopen, and the arguments

15   are therefore waived.     See Lin Zhong v. U.S. Dep’t of

16   Justice, 480 F.3d 104, 119-20 (2d Cir. 2007); 8 C.F.R.

17   § 1003.2(c)(1) (“[a] motion to reopen proceedings shall not

18   be granted unless it appears to the Board that evidence

19   sought to be offered is material and was not available and

20   could not have been discovered or presented at the former

21   hearing" and “must be accompanied by the appropriate

22   application for relief”).

23

                                     4
1        For the foregoing reasons, the petition for review is

2    DISMISSED.   As we have completed our review, any stay of

3    removal that the Court previously granted in this petition

4    is VACATED, and any pending motion for a stay of removal in

5    this petition is DENIED as moot.    Any pending request for

6    oral argument in this petition is DENIED in accordance with

7    Federal Rule of Appellate Procedure 34(a)(2), and Second

8    Circuit Local Rule 34.1(b).

 9                                 FOR THE COURT:
10                                 Catherine O’Hagan Wolfe, Clerk




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