Sheldon Silvera Scarlett v. U.S. Attorney General

FILED
U.S. COURT OF APPEALS
ELEVENTH CIRCUIT
FEB 16, 2012
JOHN LEY
CLERK
[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
________________________
No. 11-12635
Non-Argument Calendar
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Agency No. A037-825-563
SHELDON SILVERA SCARLETT,
llllllllllllllllllllllllllllllllllllllllPetitioner,
versus
U.S. ATTORNEY GENERAL,
llllllllllllllllllllllllllllllllllllllllRespondent.
________________________
Petition for Review of a Decision of the
Board of Immigration Appeals
________________________
(February 16, 2012)
Before PRYOR, MARTIN and KRAVITCH, Circuit Judges.
PER CURIAM:
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Sheldon Scarlett, represented by counsel, seeks review of the Board of
Immigration Appeal’s order denying as untimely his motion to reopen his removal
proceedings pursuant to 8 U.S.C. § 1229a(c)(7)(C), 8 C.F.R. § 1003.2(b)(1).
On March 13, 2000, an Immigration Judge (“IJ”) ordered Scarlett’s removal,
based upon his conviction for the aggravated felony of burglary and a related fifty-
four-month prison term for violating probation, pursuant to 8 U.S.C.
§§ 1101(a)(43)(g), 1227(a)(2)(iii). On October 3, 2000, the BIA dismissed
Scarlett’s appeal of the IJ’s removal order. Scarlett had informed both the IJ and
the BIA that he was in the process of appealing his prison sentence. The BIA
indicated that it had no evidence of Scarlett’s sentencing appeal, but also stated
that if Scarlett’s sentence was modified, he could file a motion to reopen. As it
turned out, a Florida court reversed and remanded Scarlett’s prison sentence on
August 16, 2000, nearly six weeks before the BIA dismissed Scarlett’s
immigration appeal on October 3, 2000. As Scarlett correctly argues, the
successful appeal of his prison sentence removed his conviction from the category
of aggravated felony, thus negating the BIA’s basis for his removal. See 8 U.S.C.1
Title 8 U.S.C. § 1227(a)(2)(iii) permits removal for conviction of an aggravated felony.1
Title 8 U.S.C. § 1101(a)(43)(g) defines an aggravated felony as a “burglary offense for which the
term of imprisonment is at least one year.” Scarlett’s Notice to Appear before the Immigration
Judge based removal on his burglary conviction and his fifty-four-month prison sentence.
Scarlett was initially placed on probation for his burglary offense, but only received his prison
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§§ 1101(a)(43)(g), 1227(a)(2)(iii).
Despite Scarlett’s successful appeal of his prison sentence, he did not file a
motion to reopen his removal proceedings until March 2011. On May 16, 2011
the BIA found Scarlett’s motion to reopen to be untimely under 8 U.S.C.
§ 1229a(c)(7)(C)(i), which requires filing of a motion to reopen “within 90 days of
the date of entry of a final administrative order of removal.” Further, the BIA
noted that Scarlett had failed to provide “a coherent and persuasive explanation for
why he waited almost 11 years to file a motion to reopen.” Accordingly, the BIA
denied Scarlett’s motion for lack of jurisdiction.
This Court reviews the denial of a motion to reopen removal proceedings
for abuse of discretion. Al Najjar v. Ashcroft, 257 F.3d 1262, 1302 (11th Cir.
2001). Review is limited to determining whether the BIA exercised its discretion
in an arbitrary or capricious manner. Abdi v. U.S. Att’y Gen., 430 F.3d 1148,
1149 (11th Cir. 2005).
On appeal, Scarlett does not contest that his motion to reopen was untimely
under the statutory time-limit of 8 U.S.C. § 1229a(c)(7)(C). Instead, he cites
sentence when he violated probation. Therefore, a successful challenge to Scarlett’s prison
sentence would have left Scarlett with only probation, thus removing him from the scope of
§§ 1101(a)(43)(g), 1227(a)(2)(iii). See, e.g., United States v. Guzman-Bera, 216 F.3d 1019,
1020 (11th Cir. 2000).
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8 U.S.C. § 1229a(b)(5)(C)(ii), which permits reopening of removal proceedings at
“any time if the alien demonstrates that the [he] did not receive notice” of the
proceedings. By its clear terms, § 1229a(b)(5)(C)(ii) only applies to an in absentia
removal order, where the petitioner did not receive notice of his pending
proceedings. See Contreras-Rodriguez v. U.S. Att’y Gen., 462 F.3d 1314, 1317
(11th Cir. 2006). Here, Scarlett has not claimed that the Attorney General failed to
notify him of his removal proceedings.
Nevertheless, Scarlett argues that the principle underlying
§ 1229a(b)(5)(C)(ii) should apply equally to an untimely motion to reopen a pro se
proceeding for nunc pro tunc relief. That is to say, because the BIA had
incorrectly based Scarlett’s removal on a vacated prison sentence, the BIA should
have the inherent authority to correct its previous error. The BIA apparently
considered exercising its sua sponte authority to reopen the proceeding, but
declined to do so, because Scarlett failed to explain the eleven-year delay in filing
his motion to reopen. To the extent that Scarlett is challenging the BIA’s refusal
to exercise its sua sponte authority to reopen the proceedings, we lack jurisdiction
to review such a decision by the BIA. Lenis v. U.S. Att’y Gen., 525 F.3d 1291,
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1293 (11th Cir. 2008).2
For these reasons, we cannot say that the BIA abused its discretion in
denying Scarlett’s motion to reopen his removal proceedings. Therefore, we
DENY the petition.
Scarlett explains on appeal that he waited eleven years because he was misled by2
incorrect statements of law that the IJ made to him. While Scarlett concedes that his motion to
reopen did not specifically address the reason for his delay, he argues that the reason should have
been “obvious” to the BIA from the administrative record. This argument necessarily appeals to
the BIA’s sua sponte authority to reopen proceedings, and as such, we lack jurisdiction to review
the BIA’s decision on this ground. Lenis, 525 F.3d at 1293.
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