FOR REVIEW OF AN ORDER OF THE BOARD OF IMMIGRATION APPEALS
Panzarino and The Law Office of Johanna Herrero on brief for
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.
Thompson, Kayatta, and Barron, Circuit Judges.
THOMPSON, CIRCUIT JUDGE.
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.
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.
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.). 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.
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
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.
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 ...