PETITION FOR REVIEW OF AN ORDER OF THE BOARD OF IMMIGRATION APPEALS.
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.
Before Howard and Thompson, Circuit Judges, Laplante, District Judge.[*]
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.
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" ) 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. § 1251(a)(2)(B)(i),
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 See 8 U.S.C. § 1182(c), repealed by Illegal Immigration Reform and Immigrant Responsibility Act of 1996, Pub.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. 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 " 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. 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 ...