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Matias v. Sessions

United States Court of Appeals, First Circuit

September 8, 2017

JEFFERSON B. SESSIONS III, Attorney General, Respondent.


          Jason Panzarino and The Law Office of Johanna Herrero on brief for petitioner.

          Allison Frayer, Trial Attorney, Office of Immigration Litigation, Civil Division, Chad A. Readler, Acting Assistant Attorney General, Civil Division, and Jessica A. Dawgert, Senior Litigation Counsel, Office of Immigration Litigation, Civil Division, on brief for respondent.

          Before Thompson, Kayatta, and Barron, Circuit Judges.


         Petitioner Juan Ramirez Matias ("Ramirez") challenges the Board of Immigration Appeals's ("BIA") denial of his motion to exercise its sua sponte authority to reopen his case and grant his request for cancellation of removal. We find that even if we have jurisdiction to consider his appeal, we must still deny Ramirez's petition.


         Ramirez is no stranger to this court: in 2014, he petitioned for review of the BIA's denial of his application for cancellation of removal (as well as some other forms of relief that are not relevant to this appeal). Ramirez-Matias v. Holder, 778 F.3d 322, 324 (1st Cir. 2015). Because we've laid out most of the relevant facts once before, here we keep it brief.

         Ramirez was served with a notice to appear in 2008, alleging that he was removable because he was "[a]n alien present in the United States who has not been admitted or paroled." See 8 U.S.C. § 1182(a)(6)(A)(i). Through counsel, he conceded the point but applied for cancellation of removal under the Nicaraguan Adjustment and Central American Relief Act ("NACARA"), Pub. L. No. 105-100, §§ 201-204, 111 Stat. 2160, 2196-2201 (codified as amended in scattered sections of 8 U.S.C.).[1] NACARA applicants must make a handful of showings by a preponderance of the evidence to be eligible--most relevant here is that the applicant be "a person of good moral character, " 8 C.F.R. § 1240.66(b)(3)--and even then "the applicant must . . . persuade the immigration court that he merits a favorable exercise of its discretion." Ramirez-Matias, 778 F.3d at 325-26.

         Ramirez's application was denied in 2012 after the Immigration Judge ("IJ") found that Ramirez had not shown either. Specifically, the IJ noted that Ramirez was arrested twice: once in 1994 and once in 2006 for "very serious assaultive behavior towards the mothers of his children." Both women testified that Ramirez did not hit them, and Ramirez himself denied the "assaultive behavior, " claiming that the police lied and both incidents were misunderstandings. But for his part, the IJ thought it more likely that Ramirez was the one telling a lie. Ramirez appealed, but the BIA affirmed: there was no "clear error" in the IJ's "finding that the police reports were more reliable than his or his witness[es] statements."

         Ramirez petitioned this court for review of that finding. Id. at 324. Because NACARA relief is a discretionary determination, we usually do not have jurisdiction to review a BIA order denying such relief. Id. at 326. There is an exception to this general rule "when the claim presented to a federal court embodies colorable constitutional claims or questions of law." Id. Ramirez's petition contained neither. Instead, we found his claim boiled down to a "disagreement with the agency's view of the relative credibility of the police reports and the testimony proffered to contradict them. That is a factual determination and, therefore, a determination that we have no jurisdiction to review." Id. So, it was back to the drawing board for Ramirez.

         In 2016, over a year later, Ramirez fired his next shot at the IJ's decision, and this time he had an argument bearing the "constitutional" label at the ready. In his "Motion to Reopen Pursuant to this Board's Sua Sponte Authority, " Ramirez argued that his procedural-due-process rights to a fair hearing were violated because of translation difficulties. We will get into the details of the claim a little later, but for now here's the gist: Ramirez and his wife, Lucia Ahilon Pablo ("Ahilon"), are native speakers of Todos Santos Mam, but he used a Spanish interpreter and Ahilon's interpreter spoke a different dialect of Mam. As a result, some things, he says, were "lost in translation." According to Ramirez's argument, the IJ's adverse credibility finding (that is, the IJ's decision to trust the police reports over Ramirez's story) resulted from these mistranslations, so he should get a do-over with an interpreter who speaks Todos Santos Mam. Ramirez conceded his motion was untimely--and he offered no explanation for his nearly four-year delay in bringing these alleged hearing-level translation difficulties to the BIA's attention. The BIA denied the motion:

The motion is untimely filed and has not been shown to come within an exception to the time limits imposed by law on motions to reopen or reconsider removal proceedings. The respondent has offered no explanation for the delay in making the due process and other arguments now being made. Further, we do not find that exceptional circumstances warranting the sua sponte ...

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