11-4867 Pereyra-Martinez v. Holder BIA A031 021 291 

### 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 CI TING A SUMMARY**  **ORDER MUST SERVE A COPY OF IT ON ANY PARTY NOT REPRESENTED BY COUNSEL.**  **At a stated term of the United States Court of Appeals for the Second Circuit, held at the Thurgood Marshall United**  **States Courthouse, 40 Foley Square, in the City of New York, on the 16**  **th day of April, two thousand thirteen.** 
PRESENT: ROBERT A. KATZMANN, RICHARD C. WESLEY, GERARD E. LYNCH, Circuit Judges

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_____________________________________ JOSE PEREYRA-MARTINEZ, Petitioner , v. 11-4867 NAC ERIC H. HOLDER, JR., UNITED STATES ATTORNEY GENERAL, Respondent
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_____________________________________ FOR PETITIONER: Alexander Arandia, Forest Hills, N.Y. FOR RESPONDENT: Stuart F. Delery, Acting Assistant Attorney General; Thomas B. Fatouros, Senior Litigation Counsel; Robert Michael Stalzer, Trial Attorney, Office of Immigration Litigation, United States Department of Justice, Washington, DCUPON DUE CONSIDERATION of this petition for review of a Board of Immigration Appeals (“BIA”) decision, it is hereby ORDERED, ADJUDGED, AND DECREED that the petition for review is
DISMISSED. Petitioner Jose Pereyra-Martinez, a native and citizen of the Dominican Republic, seeks review of an October 26, 2011, order of the BIA denying his motion to reopen and reconsider. In re Jose Pereyra-Martinez , No. A031 021 291 (B.I.A. Oct. 26, 2011). We assume the parties’ familiarity with the underlying facts and procedural history of the case. We lack jurisdiction to review a final order of deportation, including an order denying a motion to reopen and reconsider, issued against an alien such as Pereyra-Martinez who was found deportable by reason of having committed an offense relating to a controlled substance. See 8 U.S.C. § 1252(a)(2)(C); see also Santos-Salazar v. U.S. Dep’t of Justice , 400 F.3d 99, 102-03 (2d Cir. 2005); Durant v. INS , 393 F.3d 113, 115 (2d Cir. 2004). However, we retain jurisdiction to review colorable constitutional claims or questions of law. See 8 U.S.C. § 1252(a)(2)(D). PereyraMartinez raises no colorable constitutional claims or questions of law in challenging the BIA’s denial of his

2motion. See Barco-Sandoval v. Gonzales , 516 F.3d 35, 40 (2d Cir. 2008). It is undisputed that Pereyra-Martinez’s 2011 motion, filed more than seven years after the agency’s deportation order became final, was untimely. See 8 U.S.C.§ 1229a(c)(6),(7). Because the untimely filing of PereyraMartinez’s motion was not excused by any statutory exception,

see 8 U.S.C. § 1229a(c)(7)(C)(ii)-(iv), his motion “could only be considered upon exercise of the Agency’s sua sponte authority.” Mahmood v. Holder , 570 F.3d 466, 469 (2d Cir. 2009); 8 C.F.R. § 1003.2(a). Such a decision is “entirely discretionary” and beyond the scope of our review. Ali v. Gonzales , 448 F.3d 515, 518 (2d Cir. 2006). Nevertheless, “where the Agency may have declined to exercise its sua sponte authority because it misperceived the legal background and thought, incorrectly, that a reopening would necessarily fail, remand to the Agency for reconsideration in view of the correct law is appropriate.” Mahmood , 570 F.3d at 469; see also Aslam v. Mukasey , 537 F.3d 110, 115 (2d Cir. 2008); 8 U.S.C. § 1252(a)(2)(D). Here, there is no indication that the BIA misperceived the law in declining to reopen or reconsider. Indeed, as the

3BIA noted, contrary to Pereyra-Martinez’s argument, the Supreme Court’s decision in Lopez v. Gonzales , 549 U.S. 47 (2006), had no bearing on Pereyra-Martinez’s deportability. Lopez addressed the issue of whether a state conviction constitutes an aggravated felony under the Immigration and Nationality Act. See id. , at 53, 60. Here, Pereyra-Martinez was charged as subject to deportation as an alien convicted of a law relating to a controlled substance, not an aggravated felony. Similarly, Pereyra-Martinez’s unexhausted argument that the Supreme Court’s decision in Vartelas v. Holder , 132 S. Ct. 1479 (2012), provided a basis for sua sponte reopening is frivolous because, unlike the petitioner in Vartelas , Pereyra-Martinez was not found deportable because of a retroactive application of the travel restraint in the Illegal Immigration Reform and Immigrant Responsibility Act. See id. at 1488-90. We decline to consider Pereyra-Martinez’s arguments regarding the departure bar, as the BIA did not apply that bar in this case. See Lin Zhong v. U.S. Dep’t of Justice , 480 F.3d 104, 122 (2d Cir. 2007). For the foregoing reasons, the petition for review is DISMISSED. Pereyra-Martinez’s pending request for oral

4argument is DENIED in accordance with Federal Rule of Appellate Procedure 34(a)(2), and Second Circuit Local Rule 34(b).
FOR THE COURT: Catherine O’Hagan Wolfe, Clerk

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