         11-5156
         Ortiz v. Holder
                                                                                           BIA
                                                                                   A044 476 510
                                 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 16th day of April, two thousand thirteen.
 5
 6       PRESENT:
 7                         ROBERT A. KATZMANN,
 8                         RICHARD C. WESLEY,
 9                         GERARD E. LYNCH,
10                              Circuit Judges.
11
12       _____________________________________
13
14       TEOFILO ORTIZ, A.K.A. GILBERTO ORTIZ,
15                Petitioner,
16
17                          v.                                     11-5156
18                                                                 NAC
19       ERIC H. HOLDER, JR., UNITED STATES
20       ATTORNEY GENERAL,
21                Respondent.
22       _____________________________________
23
24       FOR PETITIONER:                 Alexander Arandia, Forest Hills, New
25                                       York.
26
27       FOR RESPONDENT:                 Stuart F. Delery, Assistant Attorney
28                                       General; Allen W. Hausman, Senior
29                                       Litigation Counsel; Sharon M. Clay,
30                                       Trial Attorney, Office of Immigration
31                                       Litigation, United States Department of
32                                       Justice, Washington, D.C.
 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 is

 4   DISMISSED.

 5       Petitioner Teofilo Ortiz, a native and citizen of the

 6   Dominican Republic, seeks review of a November 15, 2011, order

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

 8   In re Teofilo Ortiz, No. A044 476 510 (B.I.A. Nov. 15, 2011).

 9   We assume the parties’ familiarity with the underlying facts

10   and procedural history of the case.

11       We lack jurisdiction to review a final order of removal,

12   including an order denying a motion to reopen and reconsider,

13   issued against an alien, such as Ortiz, who was ordered

14   removed by reason of having committed an offense related to a

15   controlled substance.    See 8 U.S.C. § 1252(a)(2)(C); see also

16   Santos-Salazar v. U.S. Dep’t of Justice, 400 F.3d 99, 102-03

17   (2d Cir. 2005);    Durant v. INS, 393 F.3d 113, 115 (2d Cir.

18   2004).   However, we retain jurisdiction to review colorable

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

20   § 1252(a)(2)(D).   Ortiz raises no colorable constitutional

21   claims or questions of law in challenging the BIA’s denial of

22   his motion.   See Barco-Sandoval v. Gonzales, 516 F.3d 35, 40

23   (2d Cir. 2008).

                                     2
 1       It is undisputed that Ortiz’s 2011 motion, filed eight

 2   years after the agency’s removal order became final, was

 3   untimely.     See 8 U.S.C. § 1229a(c)(6), (7).   Because the

 4   untimely filing of Ortiz’s motion was not excused by any

 5   statutory exception, see 8 U.S.C. § 1229a(c)(7)(C)(ii)-(iv),

 6   his motion “could only be considered upon exercise of the

 7   Agency’s sua sponte authority.”      Mahmood v. Holder, 570 F.3d

 8   466, 469 (2d Cir. 2009); see also 8 C.F.R. § 1003.2(a).        Such

 9   a decision is “entirely discretionary” and beyond the scope of

10   our review.     Ali v. Gonzales, 448 F.3d 515, 518 (2d Cir.

11   2006).   Nevertheless, “where the Agency may have declined to

12   exercise its sua sponte authority because it misperceived the

13   legal background and thought, incorrectly, that a reopening

14   would necessarily fail, remand to the Agency for

15   reconsideration in view of the correct law is appropriate.”

16   Mahmood, 570 F.3d at 469; see also Aslam v. Mukasey, 537 F.3d

17   110, 115 (2d Cir. 2008); 8 U.S.C. § 1252(a)(2)(D).

18       Here, there is no indication that the BIA misperceived

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

20   BIA noted, contrary to Ortiz’s argument, the Supreme Court’s

21   decision in Lopez v. Gonzales, 549 U.S. 47 (2006), had no

22   bearing on Ortiz’s inadmissibility.     While Lopez addressed the

23   issue of when a state conviction constitutes an aggravated

                                      3
 1   felony under the Immigration and Nationality Act, see id. at

 2   53, 60, Ortiz was charged as subject to removal as an alien

 3   convicted of a law relating to a controlled substance, not an

 4   aggravated felony.

 5       We decline to consider Ortiz’s arguments regarding the

 6   departure bar, as the BIA did not apply that bar in his case.

 7   See Lin Zhong v. U.S. Dep’t of Justice, 480 F.3d 104, 122 (2d

 8   Cir. 2007).

 9       For the foregoing reasons, the petition for review is

10   DISMISSED.    Ortiz’s pending request for oral argument is

11   DENIED in accordance with Federal Rule of Appellate Procedure

12   34(a)(2), and Second Circuit Local Rule 34(b).

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