            United States Court of Appeals
                        For the First Circuit

No. 13-1131

                         JOSE MARIA GUERRERO,

                             Petitioner,

                                  v.

         ERIC H. HOLDER, JR., UNITED STATES ATTORNEY GENERAL,

                             Respondent.


                   PETITION FOR REVIEW OF AN ORDER
                 OF THE BOARD OF IMMIGRATION APPEALS



                                Before

                 Howard and Thompson, Circuit Judges,
                      Laplante, District Judge.*



     Martin D. Harris on brief for petitioner.
     Jennifer P. Levings, Senior Litigation Counsel, U.S.
Department of Justice, Civil Division, Office of Immigration
Litigation, Stuart F. Delery, Assistant Attorney General, Civil
Division, and Shelley R. Goad, Assistant Director, Office of
Immigration Litigation, on brief for respondent.


                          September 9, 2014




     *
         Of the District of New Hampshire, sitting by designation.
          THOMPSON, Circuit Judge.        The petitioner, Jose Maria

Guerrero, is a native and citizen of the Dominican Republic.         He

seeks review of a final order of the Board of Immigration Appeals

("BIA"), dated December 27, 2012, vacating a prior decision to

reopen proceedings, and reinstating a prior order of deportation.

Because the BIA acted pursuant to its discretionary sua sponte

authority, we lack jurisdiction to review the petition.

                          I.   BACKGROUND

          We relate only the necessary factual and procedural

background to provide context for our decision.

               A.   Initial Deportation Proceedings

          Guerrero was admitted to the United States on May 8,

1986, as a lawful permanent resident.       On May 13, 1991, he was

convicted of criminal possession of a controlled substance in

violation of New York law.     By virtue of this conviction, the

former Immigration and Naturalization Service ("INS")1 commenced

deportation proceedings against Guerrero in September 1995, filing

an Order to Show Cause ("OSC") with the immigration court. The INS

charged Guerrero with deportability under § 241(a)(2)(B)(i) of the

Immigration   and   Nationality     Act     ("INA"),   8    U.S.C.   §




     1
      "The INS's enforcement functions have since been     transferred
to the Department of Homeland Security." Chedid v.         Holder, 573
F.3d 33, 34 n.1 (1st Cir. 2009). For purposes of this      opinion, we
refer to the agency in place at the time the               deportation
proceedings commenced: the INS.

                                  -2-
1251(a)(2)(B)(i),2 as an alien convicted of violating a controlled

substance law, and submitted the conviction record as evidence.

Appearing with counsel before an immigration judge ("IJ") on April

16, 1996, Guerrero (through written pleadings) admitted the OSC's

factual allegations, and conceded his deportability as charged. As

relief from deportation, however, Guerrero sought a waiver of

inadmissibility under former INA § 212(c). See 8 U.S.C. § 1182(c),

repealed by Illegal Immigration Reform and Immigrant Responsibility

Act of 1996, Pub. L. No. 104–208, Title III, § 304(b), 110 Stat.

3009, 3009–597.3   At a later hearing on March 11, 1997, the IJ gave

Guerrero the opportunity to withdraw his pleadings admitting the

OSC's allegations and conceding deportability, and to contest

deportability.     When he declined, the IJ ruled that Guerrero's

admissions and concession of deportability, along with the evidence

on the record, sustained the charge of deportability.   The IJ then

pretermitted Guerrero's application for § 212(c) relief -- finding

the Antiterrorism and Effective Death Penalty Act of 1996, Pub. L.

No. 104-132, 110 Stat. 1214 ("AEDPA"), precluded § 212(c) relief




     2
         Now INA § 237(a)(2)(B)(i), 8 U.S.C. § 1227(a)(2)(B)(i).
     3
       Repealed in 1996, "[t]he former § 212(c) granted the
Attorney General broad discretion to terminate deportation
proceedings against an excludable alien. For decades, the class of
aliens eligible for such relief included aliens ordered . . .
deportable because of multiple convictions involving crimes of
moral turpitude." Nadal-Ginard v. Holder, 558 F.3d 61, 64 n.4 (1st
Cir. 2009).

                                 -3-
"for all aliens deportable by reason of having committed any

[controlled substance] offenses" -- and ordered his deportation.

             Guerrero appealed the IJ's decision to the BIA on April

8, 1997.     On February 28, 2000, while the appeal was still pending

before the BIA, Guerrero pled nolo contendere in Rhode Island state

court to a charge of manufacturing/delivering a schedule I/II

controlled substance (cocaine), for which he received a deferred

sentence of five years.4    On July 31, 2000, the BIA (unaware of the

Rhode Island conviction) sustained Guerrero's appeal of the IJ's

March 11, 1997 decision because the AEDPA restrictions the IJ

relied on did not apply retroactively to proceedings commenced on

or before April 24, 1996, and Guerrero's proceedings had commenced

when he was served with the OSC on September 15, 1995.            It remanded

the record back to the IJ to allow Guerrero the opportunity to

apply for § 212(c) relief.

             On September 7, 2000, during a hearing on remand, INS

orally amended the OSC to reflect the Rhode Island conviction.

According to the INS, Guerrero was now also subject to deportation

under       former    INA     §        241(a)(2)(A)(iii),         8      U.S.C.

§   1251(a)(2)(A)(iii),5    as    an    alien   who,   at   any   time    after

admission, is convicted of an aggravated felony.            The IJ, finding

the Rhode Island conviction qualified as an aggravated felony,


      4
          The charged offense was committed on September 16, 1998.
      5
          Now INA § 237(a)(2)(A)(iii), 8 U.S.C. § 1227(a)(2)(A)(iii).

                                       -4-
again       pretermitted    Guerrero's       claim   for    §   212(c)   relief    on

September 10, 2001, and ordered him "removed and deported to the

Dominican      Republic     on   the   two    charges      lodged   against    him."6

Guerrero timely appealed to the BIA.             And on January 23, 2002, the

BIA affirmed the IJ's September 10, 2001 decision, agreeing that

Guerrero's Rhode Island conviction precluded him from § 212(c)

relief.      Guerrero was physically removed from the United States to

the Dominican Republic on September 18, 2002.

                       B.    Reopening of Proceedings

               On January 11, 2006, Guerrero entered the United States,

without inspection or admission.              More than a year later, on June

22, 2007, he filed an untimely motion with the BIA to reopen his

proceedings.7       Guerrero contended that reopening was warranted

because his Rhode Island conviction had been vacated, and he

submitted the May 30, 2002 Rhode Island state court order vacating

said conviction.       INS did not respond to this motion.                    The BIA

denied the motion to reopen on July 23, 2007, explaining Guerrero's

Rhode Island conviction remained final for immigration purposes

because it was "unable to ascertain whether the [Rhode Island

state] court's action was taken pursuant to a rehabilitative


        6
       The IJ had found that the added OSC charge for the Rhode
Island conviction was sustained by clear, convincing, and
unequivocal evidence.
        7
       As of right, an alien may file a single motion to reopen
within 90 days of the date of the BIA's final decision. See 8
U.S.C. §§ 1229a(c)(7)(A) & (c)(7)(C)(i); 8 C.F.R. § 1003.2(c)(2).

                                         -5-
statute      or   to   ameliorate      the     immigration       consequences     of

[Guerrero]'s conviction."

             On March 17, 2008, Guerrero filed an untimely motion to

reconsider the BIA's July 23, 2007 decision.8                Reiterating that a

conviction no longer existed to support his deportability under the

then-existing § 241(a)(2)(A)(iii) as an alien convicted of an

aggravated felony, and that he was thus not barred from being

considered for a § 212(c) waiver of inadmissibility, Guerrero

submitted     documentation        evidencing    that      the   criminal     charge

underpinning the Rhode Island conviction had been dismissed "on the

grounds that the State cannot sustain its burden of proof in the

prosecution of this matter."           INS did not respond to this motion

either.

             Although    Guerrero's         motion   was    untimely,9      the   BIA

nevertheless decided to sua sponte reopen the proceedings on June

4,   2008,    remanded       the   record    back    to    the   IJ   for    further

consideration           of         Guerrero's        deportability            under

§ 241(a)(2)(A)(iii), eligibility for § 212(c) relief, and "any

other relief for which he may currently qualify." In doing so, the

BIA explained that the evidence submitted with the motion was


      8
       A motion to reconsider a BIA order must be filed within 30
days of a final order of removal. See 8 U.S.C. § 1229a(c)(6)(B);
8 C.F.R. § 1003.2(b)(2).
      9
       The BIA found the motion to be untimely whether it was
considered as a motion to reconsider (under 8 C.F.R. § 1003.2(b))
or as a motion to reopen (under 8 C.F.R. § 1003.2(c)(2)).

                                        -6-
"undisputably probative (and potentially dispositive) of whether a

'conviction' . . . exists to support [Guerrero's] deportability as

an alien convicted of an aggravated felony, and by extension to

preclude him from being considered for 212(c) relief."   It further

explained -- mistakenly -- that because Guerrero "has been a lawful

permanent resident of the United States for over 22 years," he

might "be able to demonstrate eligibility for section 212(c)."

          At a hearing on remand on May 11, 2010 before a new IJ,

INS challenged Guerrero's eligibility for relief from removal,

arguing that he was no longer a lawful permanent resident under 8

C.F.R. § 1001.1(p)10, and that the BIA had improperly reopened

proceedings in light of his 2002 deportation.    Following further

briefing on the issue, the IJ issued a decision on November 22,

2010, holding that the immigration court lacked jurisdiction to

adjudicate Guerrero's § 212(c) waiver application or any other

application for relief due to the departure bar of 8 C.F.R.

§ 1003.23(b)(1), which limited its jurisdiction to adjudicate




     10
       "The term lawfully admitted for permanent residence means
the status of having been lawfully accorded the privilege of
residing permanently in the United States as an immigrant in
accordance with the immigration laws, such status not having
changed. Such status terminates upon entry of a final
administrative order of exclusion, deportation, removal, or
rescission." 8 C.F.R. § 1001.1(p).

                               -7-
motions filed by aliens who had left the United States.11              The IJ

ordered Guerrero's deportation for the third time.

               C.   The BIA's Sua Sponte Reconsideration

             Guerrero appealed this decision to the BIA on December

20, 2010.     Three days later, on December 23, 2010, INS filed a

motion to vacate the June 4, 2008 sua sponte reopening order.               On

December 27, 2012, the BIA issued its decision -- the subject of

this appeal -- determining that its June 4, 2008 order sua sponte

reopening proceedings was issued in error.              Citing "legal and

factual   errors    in   its   prior    decision   to   sua   sponte   reopen

proceedings," the BIA reconsidered the June 4, 2008 decision, and

ultimately denied Guerrero's March 17, 2008 motion to reconsider.

Accordingly, the BIA granted INS's motion to vacate; vacated its

own June 4, 2008 sua sponte order, as well as the IJ's November 22,

2010 decision ordering Guerrero's deportation; denied Guerrero's

March 17, 2008 motion to reconsider; and dismissed Guerrero's

appeal from the IJ's November 22, 2010 decision as moot.               The BIA

then declared that its January 23, 2002 deportation order remained

in effect.




     11
       "A motion to reopen or to reconsider shall not be made by
or on behalf of a person who is the subject of removal,
deportation, or exclusion proceedings subsequent to his or her
departure from the United States." 8 C.F.R. § 1003.23(b)(1).

                                       -8-
                              II.    ANALYSIS

              Advancing multiple arguments, Guerrero now petitions for

review of the BIA's November 27, 2012 order (the most recent one)

effectively denying sua sponte reopening proceedings, and asks us

to reverse it.      But we cannot.   We lack jurisdiction to do so.

              Although we typically have jurisdiction to review the

denial of a motion to reopen by the BIA, "there are exceptions to

that general rule."      Peralta v. Holder, 567 F.3d 31, 32 (1st Cir.

2009).      One of these exceptions is the review of a "decision not to

reopen removal proceedings sua sponte," id., because "[t]here are

no guidelines or standards which dictate how and when the BIA

should invoke its sua sponte power," Córdoba-Quiroz v. Gonzáles,

233 F. App'x 5, 7 (1st Cir. 2007)(alteration in original)(quoting

Luis v. I.N.S., 196 F.3d 36, 41 (1st Cir. 1999))(internal quotation

marks omitted).12      "The BIA's regulations provide that it 'may at

any time reopen or reconsider on its own motion any case in which

it has rendered a decision.'"        Cerrato-Marquez v. Holder, 563 F.

App'x 1, 2 (1st Cir. 2014)(quoting 8 C.F.R. § 1003.2(a))(Souter,

J.).        And this decision of whether to invoke its sua sponte

authority is committed "to the unbridled discretion of the [BIA]."


       12
       As noted by the government in its brief, there is also an
exception, contained in 8 U.S.C. § 1252(a)(2)(D), which allows this
court, in certain instances where judicial review might be limited
or eliminated, to review constitutional claims or questions of law.
The government argues that this section does not apply to the
matter at hand but this is not something we need to delve into as
Guerrero, himself, makes no argument relative to this issue.

                                     -9-
Id. (alteration in original)(quoting Matos-Santana v. Holder, 660

F.3d 91, 94 (1st Cir. 2011))(internal quotation marks omitted); see

8 C.F.R. § 1003.2(a) ("The decision to grant or deny a motion to

reopen or reconsider is within the discretion of the Board . . . .

[which] has discretion to deny a motion to reopen even if the party

moving has made out a prima facie case for relief.").

                  It is undisputed that the BIA's June 4, 2008 order

reopening Guerrero's proceedings was issued pursuant to its sua

sponte authority.          In deciding to invoke this discretionary power,

the BIA admittedly relied on the erroneous premise that Guerrero

had continued to reside in the United States for over twenty-two

years        as   a   lawful   permanent    resident,   unaware   of   Guerrero's

deportation from the country in the interim.                 After learning of

"this previously undisclosed fact,"13 the BIA reconsidered its

decision on December 27, 2012, and concluded that sua sponte

reopening was not warranted.               It was fully authorized to do so.

See Cerrato-Marquez, 563 F. App'x at 2.                 The BIA had unfettered

discretion to deny reopening the proceedings in March 2008 (when

Guerrero filed his untimely motion to reconsider), and it retained

unfettered discretion to reconsider and deny reopening in December

2012.         See Matos-Santana, 660 F.3d at 94 ("[T]he BIA has the



        13
       Guerrero did not disclose to the BIA in his motion to reopen
(June 22, 2007) or his motion to reconsider (March 14, 2008) that
he had been deported and had subsequently re-entered the United
States without inspection.

                                           -10-
authority     at   any   time,    on    its     own   initiative,   to   reopen   a

previously decided case.").             Consequently, just as we would have

lacked jurisdiction to review the BIA's refusal to exercise its sua

sponte authority to reopen Guerrero's case in June 2008, we lack

jurisdiction to review it now. Cf. Charuc v. Holder, 737 F.3d 113,

115 (1st Cir. 2013) ("[W]e think it virtually unarguable that when

an appellate court lacks jurisdiction to review an agency's denial

of particular relief, it must also lack jurisdiction to review the

denial   of    a   motion   to   reconsider       the   failure   to   grant   that

relief.").

              We need go no further.

                                 III.    CONCLUSION

              For the aforementioned reasons, we dismiss the petition

for judicial review.




                                         -11-
