         11-3117
         Lopez v. Holder
                                                                                         BIA
                                                                                 A091 251 165

                            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 Daniel Patrick Moynihan
 3       United States Courthouse, 500 Pearl Street, in the City of
 4       New York, on the 20th day of September, two thousand twelve.
 5
 6       PRESENT:
 7                JOSÉ A. CABRANES,
 8                PETER W. HALL,
 9                SUSAN L. CARNEY,
10                     Circuit Judges.
11       _________________________________________
12
13       DOMINGO LOPEZ, AKA JUNIOR LOPEZ,
14                Petitioner,
15
16                         v.                                      11-3117
17                                                                 NAC
18       ERIC H. HOLDER, JR., UNITED STATES
19       ATTORNEY GENERAL,
20                Respondent.
21       _________________________________________
22
23       FOR PETITIONER:                Domingo Lopez, Pro Se, New York, New
24                                      York.
25
26       FOR RESPONDENT:                Stuart F. Delery, Acting Assistant
27                                      Attorney General; Thomas B.
28                                      Fatouros, Senior Litigation Counsel;
29                                      Kathryn M. McKinney, Attorney,
 1                          Office of Immigration Litigation,
 2                          United States Department of Justice,
 3                          Washington, D.C.
 4
 5       UPON DUE CONSIDERATION of this petition for review of a

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

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

 8   is DISMISSED.

 9       Petitioner Domingo Lopez, a native and citizen of the

10   Dominican Republic, seeks review of the June 28, 2011, order

11   of the BIA denying his motion to reopen and reconsider.    In

12   re Domingo Lopez, No. A091 251 165 (B.I.A. June 28, 2011).

13   We assume the parties’ familiarity with the underlying facts

14   and procedural history of the case.

15       While we generally lack jurisdiction to review a final

16   order of removal issued against an alien, such as Lopez, who

17   was found removable by reason of having committed a

18   controlled substance offense, we retain jurisdiction to

19   review colorable constitutional claims or questions of law.

20   See 8 U.S.C. § 1252(a)(2)(C), (D); Durant v. INS, 393 F.3d

21   113, 115 (2d Cir. 2004) (recognizing that orders denying

22   motions to reopen are treated as final orders of removal).

23   Lopez argues that the BIA should have granted his motion to

24   reopen and reconsider based on evidence of positive


                                  2
 1   discretionary factors demonstrating his eligibility for

 2   relief under section 212(h) of the Immigration and

 3   Nationality Act.   This argument fails to raise a

 4   constitutional claim or question of law.

 5       An applicant may file one motion to reopen within 90

 6   days of the date on which a final administrative decision

 7   was rendered in the proceeding sought to be reopened, see

 8   8 U.S.C. § 1229a(c)(7)(A), (C)(i); 8 C.F.R. § 1003.2(c)(2),

 9   and may file a motion to reconsider within 30 days of an

10   order, 8 U.S.C. § 1229a(c)(6)(B); 8 C.F.R. § 1003.2(b)(2).

11   Lopez does not contest the BIA’s findings that his motion,

12   whether construed as a motion to reopen or to reconsider,

13   was untimely because it was filed over four years after the

14   agency issued its final administrative order and did not

15   fall within any regulatory exception to the time

16   limitations.   Because his motion could have been granted

17   pursuant only to the BIA’s discretionary authority to reopen

18   sua sponte, we lack jurisdiction to review Lopez’s argument

19   to the extent that it challenges the agency’s discretionary

20   denial of a request to reopen sua sponte.     See Ali v.

21   Gonzales, 448 F.3d 515, 518 (2d Cir. 2006).

22


                                   3
 1       Although we may review such a denial when it relies on

 2   a misperception of the law, see Mahmood v. Holder, 570 F.3d

 3   466, 469-71 (2d Cir. 2009), the BIA did not err in finding

 4   that Lopez’s evidence did not affect his statutory

 5   eligibility for a section 212(h) waiver, which does not

 6   waive inadmissibility for the cocaine-related drug offense

 7   for which Lopez was convicted, see 8 U.S.C. § 1182(h)

 8   (waiving inadmissibility only for simple possession of 30

 9   grams or less of marijuana).   To the extent Lopez also

10   argues that his conviction did not make him ineligible for

11   section 212(h) relief because he was not a lawful permanent

12   resident, he failed to exhaust that argument and we decline

13   to consider it.    See Lin Zhong v. U.S. Dep’t of Justice, 480

14   F.3d 104, 119-20 (2d Cir. 2007) (noting that the issue

15   exhaustion requirement is mandatory).    Accordingly, we lack

16   jurisdiction to review the BIA’s denial of reopening and

17   reconsideration.   See 8 U.S.C. § 1252(a)(2)(C), (D).

18       For the foregoing reasons, the petition for review is

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

20   removal that the Court previously granted in this petition

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

22   this petition is DISMISSED as moot.   Any pending request for


                                    4
1   oral argument in this petition is DENIED in accordance with

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

3   Circuit Local Rule 34.1(b).

4                                 FOR THE COURT:
5                                 Catherine O’Hagan Wolfe, Clerk
6




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