Not for Publication in West's Federal Reporter

 United States Court of Appeals

For the First Circuit

No. 13-1458

JAVIER ANTONIO CERRATO-MARQUEZ,

Petitioner,

v.

ERIC H. HOLDER, JR.,

Attorney General of the United States,

Respondent.

PETITION FOR REVIEW OF AN ORDER OF THE 

BOARD OF IMMIGRATION APPEALS

Before

Lynch, Chief Judge,

Souter,* Associate Justice,

and Lipez, Circuit Judge.

John H. Ruginski, Jr. on brief for petitioner.

Colin J. Tucker, Office of Immigration Litigation, Civil

Division, Department of Justice, Stuart F. Delery, Assistant

Attorney General, Civil Division, and Terri J. Scadron, Assistant

Director, Office of Immigration Litigation, on brief for

respondent.

July 11, 2014

*

Hon. David H. Souter, Associate Justice (Ret.) of the Supreme

Court of the United States, sitting by designation.
SOUTER, Associate Justice. Petitioner Javier Antonio

Cerrato-Marquez seeks review of an order of the Board of

Immigration Appeals (BIA) denying his untimely motion to reopen

removal proceedings and to reconsider dismissal of his appeal of an

immigration judge's decision ordering him removed. We dismiss the

petition for lack of jurisdiction.

I.

Cerrato-Marquez, a native and citizen of Honduras,

unlawfully entered the United States in 1991 and has remained here

since then. At a hearing before an immigration judge, he admitted

that after his arrival in the United States he had twice been

convicted of possession with intent to distribute cocaine. 

In 2008, Cerrato-Marquez was charged with and conceded

removability as both "[a]n alien present in the United States

without being admitted or paroled," 8 U.S.C. §1182(a)(6)(A)(i), and

an alien who "is or has been an illicit trafficker in [a]

controlled substance," id. §1182(a)(2)(C). He nevertheless sought

to forestall deportation by filing an application for withholding

of removal and for relief under the Convention Against Torture. He

claimed that, upon his return to Honduras, he would face

persecution and torture as someone who had lived in the United

States for a long time, and thus be subject to a misperception that

he was wealthy, making him a target for kidnapping and other

criminal victimization. The immigration judge denied relief

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because Cerrato-Marquez had not shown a likelihood either of

persecution as a member of a "particular social group" or of

torture. The BIA agreed in full with the immigration judge's

analysis and dismissed Cerrato-Marquez's appeal, by an order dated

March 5, 2012.

On December 27, 2012, nearly 300 days later, CerratoMarquez moved to reopen the removal proceedings because, he argued,

the Government had fallen short of establishing removability, by

failing to provide records of his convictions for cocaine

distribution. The BIA denied the motion as untimely, construing it

as one both to reopen removal proceedings and to reconsider its

decision dismissing his appeal. The BIA further held that CerratoMarquez had not described the sort of "exceptional situation" that

might warrant its exercise of discretionary jurisdiction to reopen

proceedings or reconsider a prior decision sua sponte, because his

motion contained no information or argument that could not have

been presented in his first appeal to the Board. In the

alternative, the BIA ruled that the Government had no obligation to

produce a record of conviction, given Cerrato-Marquez's concession

of removability and express acknowledgment of his cocaine

distribution convictions.

This petition for review followed.

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II.

Save for exceptions not to the point here, an alien's

statutory right to move to reopen removal proceedings expires "90

days [after] the date of entry of a final administrative order of

removal." 8 U.S.C. §1229a(c)(7)(A). A motion to reconsider a BIA

order must, without statutory exception, be filed even sooner,

within 30 days of a final order of removal. Id. §1229a(c)(6)(B). 

The failure to file a timely motion to reopen or reconsider,

however, "does not automatically sound the death knell for an

alien's attempt to reopen his removal proceedings." Matos-Santana

v. Holder, 660 F.3d 91, 94 (1st Cir. 2011). The BIA's regulations

provide that it "may at any time reopen or reconsider on its own

motion any case in which it has rendered a decision" and further

permit "the party affected by the decision" to file written

requests for the Board to exercise this sua sponte authority. 8

C.F.R. §1003.2(a). Whether to take any of these actions, however,

"is committed [by regulation] to the unbridled discretion of the

[BIA]." Matos-Santana, 660 F.3d at 94; see also 8 C.F.R.

§1003.2(a) ("The decision to grant or deny a[n untimely] motion to

reopen or reconsider is within the discretion of the [BIA] . . . . 

The [BIA] has discretion to deny a motion to reopen even if the

party moving has made out a prima facie case for relief."). Given

the absence of any articulable standard against which we could

evaluate such a discretionary determination by the BIA, we have

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held that "the courts lack jurisdiction to review" the BIA's

exercise of its sua sponte authority. Matos-Santana, 660 F.3d at

94. 

Here, there is no dispute that Cerrato-Marquez did not

file his motion within the statutory limits set forth in 8 U.S.C.

§1229a(c), with the consequence that the only issue could be the

BIA's abuse of discretion in acting under §1003.2(a), which we have

no jurisdiction to examine. The petition for review is DISMISSED.

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