2008 Decisions

Opinions of the United

States Court of Appeals

for the Third Circuit

5-16-2008

Rodriguez-Torres v. Atty Gen USA

Precedential or Non-Precedential: Non-Precedential

Docket No. 07-1215

Follow this and additional works at: http://digitalcommons.law.villanova.edu/thirdcircuit_2008

This decision is brought to you for free and open access by the Opinions of the United States Court of Appeals for the Third Circuit at Villanova

University School of Law Digital Repository. It has been accepted for inclusion in 2008 Decisions by an authorized administrator of Villanova

University School of Law Digital Repository. For more information, please contact Benjamin.Carlson@law.villanova.edu.

Recommended Citation

"Rodriguez-Torres v. Atty Gen USA" (2008). 2008 Decisions. Paper 1217.

http://digitalcommons.law.villanova.edu/thirdcircuit_2008/1217
 NOT PRECEDENTIAL

UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

___________

No. 07-1215

___________

JUSTO JACIENTO RODRIGUEZ-TORRES,

 Petitioner

v.

ATTORNEY GENERAL OF THE UNITED STATES,

 Respondent

____________________________________

On Petition for Review of an Order of the

Board of Immigration Appeals

(Agency No. A37 158 303)

Immigration Judge: Honorable Henry S. Dogin 

____________________________________

Submitted Pursuant to Third Circuit LAR 34.1(a)

April 23, 2008

Before: MCKEE, NYGAARD and ROTH, Circuit Judges

(Opinion filed: May 16, 2008)

___________

OPINION

___________

PER CURIAM

Justo Jaciento Rodriguez-Torres petitions for review of a Board of Immigration

Appeals (“BIA”) decision denying his motion to reopen his immigration proceedings. 

We will dismiss the petition for review.
2

Rodriguez-Torres is a native and citizen of the Dominican Republic. He came to

the United States in 1981 as an immigrant. In 1997, Rodriguez-Torres applied for

admission to the United States as a returning resident. At that time, an order to show

cause was issued charging that he was subject to deportation based upon a 1988

conviction in New York state court for criminal possession of a weapon in the third

degree.

In 2000, the Immigration Judge (“IJ”) denied Rodriguez-Torres’ motion to

terminate the proceedings and ordered his deportation. The IJ found him ineligible for

suspension of deportation because he had not maintained a continuous physical presence

here for ten years following the commission of his crime, as required by statute. The IJ

also found him ineligible for a waiver under Section 212(c) of the Immigration and

Nationality Act. In 2003, the BIA affirmed the IJ’s decision without opinion. The BIA

also denied Rodriguez-Torres’ subsequent motion to reopen the proceedings.

In 2004, the BIA granted a joint motion by Rodriguez-Torres and the Department

of Homeland Security to reopen and remand the proceedings to determine RodriguezTorres’ eligibility for suspension of deportation based upon a BIA decision holding that a

firearms offense does not stop the accrual of continuous residence for purposes of that

form of relief. On remand, however, Rodriguez-Torres admitted that he had a 2004

felony conviction in New Jersey state court for theft of movable property, which made

him ineligible for suspension of deportation. Rodriguez-Torres sought cancellation of
 “Repapering” refers to an election by the Attorney General to terminate deportation or 1

exclusion proceedings pending on the IIRIRA’s enactment date, and to reinitiate

proceedings under the IIRIRA. See Rojas-Reyes v. INS, 235 F.3d 115, 125 (2d Cir.

2000) (explaining repapering). The effect of being repapered is to make an alien who

was ineligible for suspension of deportation potentially eligible for cancellation of

removal. Id. 

3

removal, but he acknowledged that, unless the Government “repapered” his case, he was

not eligible for this form of relief. The Government stated that it was unable to repaper

1

the case because the applicable regulations were not in effect. The IJ again ordered

Rodriguez-Torres’ deportation.

In March 2006, the BIA dismissed Rodriguez-Torres’ appeal. Although

Rodriguez-Torres asserted that the repapering regulations had now been issued, and he

was eligible for cancellation of removal, the BIA found that it could not afford relief

involving the discretion of the Department of Homeland Security. The BIA also noted

that Rodriguez-Torres was not in a favorable position to ask the Department to agree to

hold the proceedings in abeyance given his 2004 theft conviction. The BIA further stated

that repapering was not available to Rodriguez-Torres, and that the IJ’s denial of

suspension of deportation due to his 2004 conviction was correct.

In November 2006, Rodriguez-Torres sought to reopen the proceedings based

upon a pending petition for an alien relative filed on his behalf by his daughter, who had

turned twenty-one years old in April 2006. Rodriguez-Torres asserted that he was eligible

for adjustment of status upon approval of the petition, and that the BIA should sua sponte

reopen the proceedings so that he could pursue relief from removal. 
 Rodriguez-Torres did file a petition for review of the March 2006 decision, but that 2

petition was dismissed for lack of prosecution.

4

In December 2006, the BIA denied the motion to reopen as untimely because the

90-day time period for filing the motion had expired in June 2006. The BIA concluded

that no exceptional situation warranted reopening sua sponte, noting that RodriguezTorres’ daughter had turned 21 years old in April 2006, and that she could have filed a

visa petition on his behalf before the motion deadline. 

Rodriguez-Torres raises four issues for our review. He argues that he is now

prima facie eligible to adjust his status because the petition for alien relative filed on his

behalf was approved on March 29, 2007. He also argues that the BIA erred in its March

2006 decision by finding him ineligible for suspension of deportation based on his 2004

conviction. Rodriguez-Torres further argues that the BIA abused its discretion in denying

his motion to reopen sua sponte because exceptional circumstances warranted reopening. 

Finally, Rodriguez-Torres contends that the BIA violated the Administrative Procedures

Act, the Immigration and Naturalization Act, and his due process rights because the

Department of Homeland Security denied him the ability to repaper his case.

We must first address our jurisdiction to entertain the petition for review. The

Government correctly argues that we lack jurisdiction to review the BIA’s March 2006

decision. Rodriguez-Torres’ petition for review is only timely with respect to the BIA’s

order denying his motion to reopen. See Stone v. I.N.S., 514 U.S. 386, 405-06 (1995). 

2

Thus, we lack jurisdiction to consider Rodriguez-Torres’ arguments that the BIA erred in
5

its March 2006 decision by finding him ineligible for suspension of deportation, and that

the BIA violated the Administrative Procedures Act, the Immigration and Naturalization

Act, and his due process rights because he was denied the ability to repaper his case.

Because Rodriguez-Torres is removable under 8 U.S.C. § 1227(a)(2)(C) based on

his commission of a firearms offense, we also lack jurisdiction to review the denial of his

motion to reopen, except to the extent it raises constitutional claims and questions of law. 

Cruz v. Attorney General, 452 F.3d 240, 246-47 (3d Cir. 2006). In his brief, RodriguezTorres disputes the BIA’s finding of no exceptional circumstances given that his daughter

could have filed her visa petition before the time to file a motion to reopen expired. He

contends that his daughter could not have filed her petition earlier because she had

difficulty obtaining a birth certificate reflecting that he is her father. 

Rodriguez-Torres’s argument that the BIA erred in finding him legally ineligible for relief

is within our jurisdiction. Cruz, 452 F.3d at 250. However, to the extent that RodriguezTorres argues that his daughter’s inability to obtain a birth certificate constitutes an

exceptional circumstance, his claim is based on evidence not in the administrative record that

is therefore beyond the scope of our review. McAllister v. Attorney General, 444 F.3d 178,

190 (3d Cir. 2006). The evidence in the administrative record shows only that his daughter

filed a visa application after the deadline to reopen had passed, and we can find no support

for the claim that the existence of a late-filed pending visa application constitutes an
 We need not address the Government’s other jurisdictional arguments because 3

jurisdiction is lacking on this basis. 6

exceptional circumstance.

3

Finally, Rodriguez-Torres’ argument that he is now eligible for an adjustment of

status based on an approved petition for alien relative is not properly before us. We may

not consider evidence outside the administrative record. McAllister, 448 F.3d at 190.

For the foregoing reasons, we will deny the petition for review. The

Government’s motion to dismiss is granted.