United States Court of Appeals 

For the First Circuit 

No. 16-2474 

JUAN RAMIREZ MATIAS, 

Petitioner, 

v. 

JEFFERSON B. SESSIONS III, Attorney General, 

Respondent. 

PETITION FOR REVIEW OF AN ORDER OF 

THE BOARD OF IMMIGRATION APPEALS 

Before 

Thompson, Kayatta, and Barron, 

Circuit Judges. 

Jason Panzarino and The Law Office of Johanna Herrero on brief 

for petitioner. 

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. 

September 8, 2017 
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THOMPSON, Circuit Judge. Petitioner 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. 

BACKGROUND 

Ramirez 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. 

Ramirez 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.).1 NACARA applicants must make 

 1 We note here that Ramirez has been represented at every 

stage of these proceedings. 
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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. 

Ramirez's 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 witness[es] statements."

Ramirez 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." 
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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. 

In 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 
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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 reopening of these proceedings have 

been demonstrated. Accordingly, the untimely 

motion is denied. 

(citations omitted). 

Undeterred, Ramirez appealed again, and so here we are 

today. 

ANALYSIS 

Ramirez renews his mistranslation-based due-process 

claim on appeal, and adds one more: the BIA abused its discretion 

by failing to give a reasoned explanation of its decision not to 

exercise its sua sponte authority.2 The government counters that 

this court does not have jurisdiction to review either claim. We 

briefly address the question of our jurisdiction, but find it's 

 2 If Ramirez thinks this was a motion under 8 C.F.R. 

§ 1003.2(c)(2) or some other provision of the immigration laws (he 

notes in his appellate brief that the "title of a motion is not 

dispositive" and his motion was not directed "simply" to the BIA's 

sua sponte authority) we consider the argument waived for lack of 

developed argumentation--he doesn't do us (or himself) the favor 

of explaining what else the motion could have been based on. See 

Caldero-Guzman v. Holder, 577 F.3d 345, 349 (1st Cir. 2009). 
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not as clear-cut as the government says--so, we dodge it and 

explain why Ramirez still cannot prevail. 

I. Jurisdiction 

We start with the jurisdictional issue. Ramirez 

appealed to the BIA's sua sponte authority under 8 C.F.R. 

§ 1003.2(a), which provides that "[t]he Board may at any time 

reopen or reconsider on its own motion any case in which it has 

rendered a decision." As the government points out, we have 

repeatedly held that we do not have jurisdiction to review 

challenges to the BIA's failure to exercise its sua sponte 

authority because such decisions are "committed to its unfettered 

discretion." Luis v. INS, 196 F.3d 36, 40 (1st Cir. 1999). Because 

"no judicially manageable standards are available for judging how 

and when [the BIA] should exercise its discretion, . . . it is 

impossible to evaluate [the] agency action for 'abuse of 

discretion'" so "the very nature of the claim renders it not 

subject to judicial review." Id. (quoting Heckler v. Chaney, 470 

U.S. 821, 830 (1985)); see also Neves v. Holder, 613 F.3d 30, 35 

(1st Cir. 2010); Caldero-Guzman, 577 F.3d at 348. 

But Ramirez claims that our case law precluding our 

jurisdiction over the BIA's failure to exercise its sua sponte 

authority should not stop us from exercising jurisdiction in this 

case. He seems to give us two reasons why. First, he claims--

without explanation--that the Supreme Court's decision in Kucana 
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v. Holder, 558 U.S. 233 (2010), gives us jurisdiction to review 

appeals to the BIA's sua sponte authority. His Kucana-based 

argument is a non-starter: we have already rejected the contention 

that Kucana, 558 U.S. at 252 n.18, in which the Supreme Court 

explicitly took no position on the Courts of Appeals' practice of 

declining to exercise jurisdiction over sua sponte matters, has 

any impact on our no-jurisdiction rule. Neves, 613 F.3d at 35. 

Ramirez gives us no reason to change course now.

Second, even if our pre-Kucana no-jurisdiction rule 

still holds sway, Ramirez says we have jurisdiction by statute: 

8 U.S.C. § 1252(a)(2)(D) provides that "[n]othing in . . . any 

. . . provision of this chapter (other than this section) which 

limits or eliminates judicial review, shall be construed as 

precluding review of constitutional claims or questions of law 

raised upon a petition for review filed with an appropriate court 

of appeals in accordance with this section." His claims are 

constitutional, he says, ergo we have jurisdiction to consider 

them on the merits under § 1252(a)(2)(D). 

Unlike his first argument, there might be some meat on 

these bones. Our no-jurisdiction rule originated with Luis, 196 

F.3d at 40, but that case was decided years before the 2005 passage 

of § 1252(a)(2)(D), so the fact that we announced such a blanket 

rule then does not decide whether § 1252(a)(2)(D) gives us 

jurisdiction today. See REAL ID Act of 2005, 119 Stat. 231; 14A 
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Arthur R. Miller, et al., Federal Practice and Procedure § 3664 

(4th ed. 2008). Furthermore, we have previously identified 

§ 1252(a)(2)(D) as a potential jurisdiction-restorer over 

constitutional claims brought in motions for sua sponte relief. 

Guerrero v. Holder, 766 F.3d 122, 126 n.12 (1st Cir. 2014) (noting 

the government's contrary argument, but declining to decide the 

question because the petitioner made no § 1252(a)(2)(D)-related 

argument). But, we are aware of no First Circuit case--and the 

parties point us to none--in which we have addressed whether 

§ 1252(a)(2)(D) has any effect on Luis's no-jurisdiction rule. 

Nonetheless, as Ramirez points out, the Seventh Circuit 

has found that § 1252(a)(2)(D) does, indeed, give it jurisdiction 

to consider legal and constitutional claims presented in appeals 

to the BIA's sua sponte authority. That court reasons that "the 

general 'no law to apply' principle of judicial review of 

administrative action"--that is, the principle we applied in Luis 

to find that we had no jurisdiction to review sua sponte matters--

"has been superseded in the immigration context by 8 U.S.C. § 

1252(a)(2)[(D)]." Cevilla v. Gonzales, 446 F.3d 658, 660 (7th 

Cir. 2006). In that circuit, then, appellate jurisdiction "extends 

to the Board's refusal to reopen . . . removal proceedings sua 

sponte" where the petitioner "raises a constitutional claim or 

legal question with regard to his underlying order of removal." 

Zambrano-Reyes v. Holder, 725 F.3d 744, 751 (7th Cir. 2013). Some 
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other circuits agree. Nawaz v. Holder, 314 F. App'x 736, 737 (5th 

Cir. 2009) (per curiam) (no jurisdiction to review sua sponte 

denial, with the exception of "constitutional challenges that were 

raised before the BIA"); Tamenut v. Mukasey, 521 F.3d 1000, 1005 

(8th Cir. 2008) (per curiam) (same). On the other hand, in 

examining its own Luis-based no-jurisdiction rule, the Sixth 

Circuit has found that § 1252(a)(2)(D) creates no such 

constitutional-claim toehold. Rais v. Holder, 768 F.3d 453, 464 

(6th Cir. 2014); see Gor v. Holder, 607 F.3d 180, 186 (6th Cir. 

2010). After all, it reasons, § 1252(a)(2)(D) only restores 

jurisdiction where it was first taken away by some "other provision 

of [that] chapter," so the statute "has no bearing on the question 

of whether courts may review the BIA's exercise of its sua sponte 

authority, for which no chapter of any legislation provides." 

Rais, 768 F.3d at 464. 

Although Ramirez's briefs bring this jurisdictional 

point to our attention, he does not explain what we should do about 

it (other than take jurisdiction to favorably decide the merits of 

his appeal, of course). In fact, Ramirez's arguments do not 

transcend his bald assertions that Kucana, Zambrano-Reyes, and 

§ 1252(a)(2)(D) give us jurisdiction here. The government, for 

its part, argues that we never have jurisdiction over appeals to 

the BIA's sua sponte authority, but makes no mention of this 

constitutional-claim wrinkle. But we don't have to decide what to 
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do about the issue now. See Seale v. INS, 323 F.3d 150, 157 (1st 

Cir. 2003) (taking a similar approach). The problems with 

Ramirez's appeal are titanic, and the jurisdictional question is 

just the tip of the proverbial iceberg. So, we assume the 

§ 1252(a)(2)(D) exception applies and we carry on. 

II. Mistranslation-Based Due-Process Claim 

Ramirez is a native speaker of Todos Santos Mam, but he 

elected to use a Spanish interpreter at his hearing. According to 

Ramirez, he and the interpreter did not always understand each 

other, so parts of his testimony were "lost in translation."3 

Ramirez claims that Ahilon's testimony (Ramirez's wife and 

witness) was also infected by translation errors because she is a 

native speaker of Todos Santos Mam but the interpreter spoke a 

different Mam dialect. Between the two, Ramirez claims that the 

translation services provided at his hearing were so inadequate 

 3 According to his brief on appeal, Ramirez "specifically 

chose to proceed with a Spanish interpreter because he had heard 

and noticed mistranslations with the Mam interpreter during his 

wife's testimony, and therefore decided it would be safer to 

proceed in Spanish, which is not his native language." The brief 

cites nothing in the record to support this contention--and the 

hearing transcript reveals that Ramirez testified before his wife. 

According to his affidavit, Ramirez elected to proceed in Spanish 

because he believed he "was more than capable [of] speaking in 

Spanish" and "knew how few people spoke Mam--particularly the Todos 

Santos dialect," so "it made sense for [him] to proceed with a 

Spanish interpreter." In any case, we take the gist of his 

argument to be that miscommunications arose from his decision to 

use a Spanish interpreter because he is not a native Spanish 

speaker. 
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that they violated his due-process rights. First, we present the 

relevant facts and Ramirez's argument, then we give our take. 

 a) Background 

 Ramirez testified first at his hearing. His primary 

mistranslation-related contention is about who he said called the 

police on the night of one of his arrests. When asked by his 

attorney to explain what happened, Ramirez says that he explained 

in Spanish, "my mother-in-law was dead so my father-in-law called 

the police, my wife was yelling in Mam and they didn't know what 

was going on." Although this version of events also appears in 

the transcript, he claims in his appellant brief that the audio 

recording of the hearing shows that the translator mistranslated 

this statement as: "my father-in-law was dead so my mother-inlaw called the police."4 In his affidavit, Ramirez gives a 

different version of events, claiming that the translator erred 

because "I did not state anything about my father-in-law contacting 

 4 We include this point here to explain the basis of Ramirez's 

argument on appeal. But Ramirez did not provide us with a copy of 

the recording or an alternative transcript to show that this socalled misinterpretation occurred. It is his duty to support his 

claims with record evidence. See Fed. R. App. P. 10(c), 11(a); De 

Araujo v. Gonzales, 457 F.3d 146, 155 (1st Cir. 2006) (citing 8 

C.F.R. § 1003.2(c)(1)); United States v. One Motor Yacht Named 

Mercury, 527 F.2d 1112, 1113 (1st Cir. 1975) ("The burden is on 

the appellant to provide this court with an appendix sufficient to 

support its points on appeal."). Because he did not, we cannot 

evaluate this part of his claim. But as we will explain, even if 

we assume the events occurred as described in his brief, he still 

cannot make out a due-process claim. 
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the police." His appeal brief does not explain the discrepancy 

between his affidavit and his argument on appeal. However, it 

does point out that Ramirez later testified that he "never knew 

who called the police." 

 Immediately after Ramirez explained (according to the 

transcript and his argument to us, anyway) that his father-in-law 

called the police, his Spanish-language interpreter asked to 

address the Judge, then said: "Would it be okay to ask him if he 

feels more comfortable in Mam than in Spanish? It may not be the 

case, but I have the feeling that it could be." The interpreter 

asked Ramirez, then said, "Spanish is okay." In his affidavit, 

Ramirez claims that "there were also points in which the 

interpreter sought to clarify some of the things I was saying in 

response to the questioning--as if she were unable to understand 

the Spanish that I was speaking." No such requests for 

clarification appear in the transcript. 

As for Ramirez's wife, Ahilon testified subsequent to 

Ramirez and through a Mam interpreter. She avers in an affidavit 

filed in support of Ramirez's motion that she had "difficulty 

understanding the interpreter," and she thinks the interpreter had 

difficulty understanding her, too. As a result "I surely expressed 

to the interpreter . . . my difficulties either by asking for 

repetition and/or rephrasing." According to Ramirez's brief, the 

audio recording of the hearing shows that the interpreter asked 
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Ahilon to repeat herself twice during her testimony. These 

instances do not appear in the transcript. Neither Ramirez nor 

Ahilon objected to the translations rendered at the hearing, nor 

did Ramirez air this argument in his first round of appeals--as 

the BIA pointed out in its order denying sua sponte relief. 

Nevertheless, Ramirez now argues that these aggregated 

translation difficulties violated his due-process rights. Had he 

"been afforded a competent translation of his testimony as is his 

due process right," he argues, "he would have been found credible 

by the Immigration Judge"--meaning the IJ would have believed his 

story about what happened the nights he was arrested, in lieu of 

the police reports--so the IJ would have found him to be a person 

of "good moral character" and granted his request for NACARA 

relief. The government disagrees. 

b) Mistranslation Analysis 

We review Ramirez's mistranslation-based due-process 

claim de novo, bearing in mind that "not every procedural misstep 

or difficulty raises anything like a constitutional issue. 

Procedural due process protects a right to a fundamentally fair 

proceeding; but few proceedings are perfect and one can have real 

errors, including ones that adversely affect a party's interests, 

without automatically violating the Constitution." Teng v. 

Mukasey, 516 F.3d 12, 17 (1st Cir. 2008). To prevail on a 

translation-based due-process claim, allegations of translation 
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difficulties are not enough; the petitioner must show that "a more 

proficient or more accurate interpretation would likely have made 

a dispositive difference in the outcome of the proceeding." Id. 

at 17-18 (quoting Harutyunyan v. Gonzales, 421 F.3d 64, 70 (1st 

Cir. 2005)); see also Chan v. Ashcroft, 93 F. App'x 247, 252-53 

(1st Cir. 2004) (rejecting translation-based due-process claim 

where the petitioner made no objection at the hearing, identified 

no specific mistranslations, and presented no evidence that 

alleged mistranslations affected outcome). Ramirez has not done 

so. 

Ramirez's mistranslation claim finds next to no support 

in the record. Ramirez only points to one specific instance of (a 

potential) mistranslation--the issue of who called the police. 

But he does not explain how that translation error about a minor 

detail in his story (assuming that mistranslation did, in fact, 

occur) could have made a "dispositive difference in the outcome of 

the proceeding." Teng, 516 F.3d at 17 (internal citations 

omitted). Ramirez and Ahilon generally aver that they believe 

that their translators did not always understand them, but they 

point to nothing in the record to indicate that these alleged 

misunderstandings had any impact on their testimony--in other 
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words, they do not demonstrate that these difficulties had any 

impact on the outcome, either.5

Without an outcome-influencing mistranslation, our work 

here is done. In his motion to the BIA for sua sponte relief, and 

in his brief to us, he contends that the IJ misweighed the evidence 

and should have credited his testimony and evidence over the police 

reports. But, as we have already explained to Ramirez himself in 

appeal number one, that type of fact-based claim is one we cannot 

review. Ramirez-Matias, 778 F.3d at 326-27. 

III. Explanation Error 

The mistranslation claim down, we have one to go: 

Ramirez says the BIA's explanation of its refusal to exercise its 

sua sponte authority was so paltry that it violated his due-process 

rights. Recall, the BIA gave two reasons for denying his motion: 

it said that Ramirez failed to explain his delay in offering his 

translation-based due-process argument, and found that Ramirez had 

not shown that exceptional circumstances warranted reopening his 

case. But even if we deemed the BIA's explanation lacking in 

sufficient detail (which we doubt), a petitioner, regardless, 

cannot state a colorable due-process claim if he does not have a 

 5 Indeed, the stories presented in Ramirez and Ahilon's posthearing affidavits--the stories Ramirez claims the IJ should have 

credited in lieu of the police reports--are the same as the stories 

the parties presented to the IJ at the hearing. 
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cognizable property or liberty interest at stake. Mejia-Orellana 

v. Gonzales, 502 F.3d 13, 17 (1st Cir. 2007). Remember, Ramirez 

appealed only to the BIA's sua sponte authority, and that relief 

is purely discretionary--meaning it "does not create a cognizable 

liberty interest." Id. (citing Jupiter v. Ashcroft, 396 F.3d 487, 

492 (1st Cir. 2005)); see Chun Xin Chi v. Holder, 606 F.3d 6, 10 

(1st Cir. 2010); Naeem v. Gonzales, 469 F.3d 33, 39 (1st Cir. 

2006). Therefore, even assuming we have jurisdiction to consider 

constitutional claims where a petitioner sought only sua sponte 

relief before the BIA, this second jurisdictional issue is fatal 

to Ramirez's explanation-based claim. See Ramirez-Matias, 778 

F.3d at 326-27. 

CONCLUSION 

Ramirez's petition for review is denied.