19-821
     Arrue v. Rosen
                                                                                  BIA
                                                                          A205 309 541
                           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 4th day of January, two thousand twenty-
 5   one.
 6
 7   PRESENT:
 8            JOSÉ A. CABRANES,
 9            ROBERT D. SACK,
10            DENNY CHIN,
11                 Circuit Judges.
12   _____________________________________
13
14   PABLO RAFAEL ARRUE,
15            Petitioner,
16
17                    v.                                         19-821
18                                                               NAC
19   JEFFREY A. ROSEN, ACTING UNITED
20   STATES ATTORNEY GENERAL,
21            Respondent.
22   _____________________________________
23
24   FOR PETITIONER:                  Diana L. Castaneda, New York, NY.
25
26   FOR RESPONDENT:                  Jeffrey Bossert Clark, Acting
27                                    Assistant Attorney General; Mary
28                                    Jane Candaux, Assistant Director;
29                                    Nicole J. Thomas-Dorris, Trial
30                                    Attorney, Office of Immigration
31                                    Litigation, United States
32                                    Department of Justice, Washington,
33                                    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 DISMISSED.

 5       Petitioner Pablo Rafael Arrue, a native and citizen of

 6   Argentina, seeks review of a March 4, 2019, order of the BIA

 7   denying his motion to reopen and reissue.       In re Pablo Rafael

 8   Arrue, No. A205 309 541 (B.I.A. Mar. 4, 2019).      We assume the

 9   parties’ familiarity with the underlying facts and procedural

10   history.

11       Because Arrue timely petitions for review of the BIA’s

12   denial of his motion to reissue, but not from the underlying

13   decision denying cancellation of removal, we may review only

14   the denial of his motion.      See Ke Zhen Zhao v. U.S. Dep’t of

15   Justice, 

265 F.3d 83

, 89–90 (2d Cir. 2001).          We apply the

16   standards for a motion to reopen and review the denial of a

17   motion to reissue for abuse of discretion.       See Ping Chen v.

18   U.S. Att’y Gen., 

502 F.3d 73

, 75 (2d Cir. 2007).

19       It is undisputed that Arrue’s 2018 motion to reopen and

20   reissue was untimely because he filed it more than one year

21   after   his     2017   order   of    removal.      See   8 U.S.C.
                                      2
 1   § 1229a(c)(7)(C)(i) (providing 90-day deadline for motions to

 2   reopen); 8 C.F.R. § 1003.2(c)(2) (same); see also Ping Chen,

 

3 502 F.3d at 75

.        Arrue did not invoke any statutory or

 4   regulatory exceptions to the time limitation.        See 8 U.S.C.

 5   § 1229a(c)(7)(C)(ii); 8 C.F.R. § 1003.2(c)(3).

 6         Although the BIA may exercise its authority to reopen at

 7   any   time   despite    the   time   limitation,   see    8 C.F.R.

 8   § 1003.2(a),   it   “invoke[s]   [its]   sua   sponte    authority

9    sparingly, treating it . . . as an extraordinary remedy

10   reserved for truly exceptional situations.”        In re G-D-, 22

11   I. & N. Dec. 1132, 1133-34 (BIA 1999); see In re J-J-, 21 I.

12   & N. Dec. 976, 984 (BIA 1997) (“The power to reopen on our

13   own motion is not meant to be used as a general cure for

14   filing defects or to otherwise circumvent the regulations,

15   where enforcing them might result in hardship.”).         We lack

16   jurisdiction to review the agency’s “entirely discretionary”

17   decision declining to reopen proceedings sua sponte.       Ali v.

18   Gonzales, 

448 F.3d 515

, 518 (2d Cir. 2006).

19         Although we may remand if the BIA “may have declined to

20   exercise its sua sponte authority because it misperceived the

21   legal background and thought, incorrectly, that a reopening
                                      3
 1   would    necessarily       fail,       remand       to   the    Agency         for

 2   reconsideration in view of the correct law is appropriate,”

 3   Mahmood v. Holder, 

570 F.3d 466

, 469 (2d Cir. 2009), the BIA

 4   did not misperceive the law.             Rather, it decided in line with

 5   its    precedent    that   its   sua       sponte   authority   is   invoked

 6   “sparingly” and is not used, as Arrue sought, “as a general

 7   remedy for any hardships created by enforcement of the time

 8   . . . limits.”       In re G-D-, 22 I. & N. Dec. at 1133–34.

 9          Contrary to Arrue’s suggestion, he does                  not have        a

10   colorable due process claim because he has not established

11   the requisite prejudice.         See Garcia-Villeda v. Mukasey, 531

12 F.3d 141

, 149 (2d Cir. 2008) (“Parties claiming denial of due

13   process in immigration cases must, in order to prevail, allege

14   some    cognizable      prejudice        fairly     attributable     to    the

15   challenged    process.”).          Our     jurisdiction    to   review     the

16   agency’s underlying decision denying cancellation of removal

17   for    failure     to   establish      the    requisite    hardship       to    a

18   qualifying relative is limited to colorable constitutional

19   claims and questions of law, 8 U.S.C. § 1252(a)(2)(B), (D);

20   Barco-Sandoval v. Gonzales, 

516 F.3d 35

, 39–41 (2d Cir. 2008),

21   and Arrue did not testify to hardship “substantially beyond
                                            4
1   the ordinary hardship that would be expected when a close

2   family member leaves this country,” In re Monreal-Aguinaga,

3   23 I. & N. Dec. 56, 62 (BIA 2001).

4       For the foregoing reasons, the petition for review is

5   DISMISSED.   All pending motions and applications are DENIED

6   and stays VACATED.

7                               FOR THE COURT:
8                               Catherine O’Hagan Wolfe,
9                               Clerk of Court




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