United States Court of Appeals
For the First Circuit
No. 22-1695
SANDRA ST. JOHN,
Petitioner,
v.
MERRICK B. GARLAND,
Respondent.
PETITION FOR REVIEW OF AN ORDER OF
THE BOARD OF IMMIGRATION APPEALS
Before
Kayatta, Lynch, and Montecalvo,
Circuit Judges.
Michael A. Ugolini for Petitioner.
Elizabeth M. Dewar, Trial Attorney, Office of Immigration
Litigation, with whom Brian M. Boynton, Principal Deputy Assistant
Attorney General, Civil Division, and Edward E. Wiggers, Senior
Litigation Counsel, were on brief, for Respondent.
September 19, 2023
MONTECALVO, Circuit Judge. Petitioner Sandra St. John
seeks review of the Board of Immigration Appeals' ("BIA") dismissal
of her appeal from the Immigration Judge's ("IJ") denial of her
statutory motion to reopen.1 St. John argues that the agency2
committed legal error in concluding that her pending
post-conviction motion to vacate did not disturb the finality of
the challenged conviction for immigration purposes, and thus was
not an adequate basis for reopening her proceedings. We hold that
the agency did not abuse its discretion in finding that St. John's
pursuit of post-conviction relief neither destroys the finality of
the underlying conviction for immigration purposes nor invalidates
the basis for the removal order predicated on it. St. John's
petition is therefore denied.
I. Background
St. John came to the United States from Trinidad and
Tobago in 1981 as a child. She remained and, in 1990, became a
1 While the BIA and the IJ also denied St. John's motion
to reopen her proceedings sua sponte, any challenge to the denial
of sua sponte reopening has been waived. St. John's opening brief
merely argues (incorrectly) that we lack jurisdiction to review
the denial of sua sponte reopening. Her reply brief contains the
first instance of any substantive development of the merits.
Accordingly, because "[a]rguments available at the outset but
raised for the first time in a reply brief need not be considered,"
United States v. Tosi, 897 F.3d 12, 15 (1st Cir. 2018), we do not
address the denial of sua sponte reopening in St. John's appeal.
2 We refer to the BIA and the IJ collectively as the
"agency."
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lawful permanent resident. Decades later, St. John was convicted
in Hampden County Superior Court of several felonies, including,
as relevant here, "mayhem," in violation of Massachusetts General
Laws ch. 265, § 14, for breaking into a woman's home and assaulting
her with hot cooking oil.3 She appealed, and the convictions were
subsequently affirmed by the Massachusetts Appeals Court on June
15, 2012. A few months later, the Department of Homeland Security
("DHS") initiated removal proceedings against St. John based on
the mayhem conviction, charging her as removable pursuant to
8 U.S.C. § 1227(a)(2)(iii) for committing an aggravated felony
crime of violence under
8 U.S.C. § 1101(a)(43)(F). On November
18, 2013, after several failed attempts at securing counsel, St.
John appeared pro se from a corrections facility for her merits
hearing. Before the IJ, she conceded that the mayhem conviction
rendered her removable, but insisted that she had been wrongfully
convicted and asked what would happen if her conviction were
overturned. In response, the IJ explained that St. John would no
longer be removable if the state court vacated her conviction. At
the end of the hearing, St. John was found removable as charged,
and the IJ ordered her removed to Trinidad and Tobago. St. John
did not appeal the order of removal, which soon after became final.
3 St. John's daughter shares a father with the victim's
daughter. At trial, the government presented St. John and the
victim as romantic rivals.
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On December 31, 2021, St. John completed her criminal
sentence and was released directly into U.S. Immigration and
Customs Enforcement ("ICE") custody pursuant to an immigration
detainer associated with her final order of removal. See 8 U.S.C.
§ 1226(c);
8 C.F.R. § 287.7.
After going into ICE custody, St. John engaged counsel,
who, on September 13, 2021, filed a motion in the Massachusetts
Superior Court asking it to vacate her conviction and grant a new
trial ("motion to vacate") on the grounds of ineffective assistance
of counsel, pursuant to Massachusetts Rule of Criminal Procedure
30(b).
St. John believed her motion to vacate had rendered the
mayhem conviction nonfinal for immigration purposes, thereby
invalidating the basis for her removability. On this theory, St.
John moved for reopening of her removal proceedings, termination
of those proceedings, and a stay of removal.4 About a week later,
on January 14, 2022, the IJ provisionally granted the stay of
removal pending resolution of St. John's requests for reopening.
On March 3, 2022, the IJ denied, without prejudice, St. John's
statutory motion to reopen and her request for reopening sua
sponte. The IJ's orders permitted St. John to refile for reopening
4 St. John also filed a motion to terminate her removal
proceedings, which the IJ denied on January 14, 2022. She has not
sought review of that decision.
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if her convictions were later overturned, but vacated the IJ's
initial stay of removal. If the conviction were to be vacated,
the IJ noted, "the stay w[ould] be re-visited." St. John,
represented by counsel, appealed.
On August 22, 2022, the BIA dismissed the appeal, having
found "no reason to disturb the Immigration Judge's decision."
The BIA concluded that St. John's likelihood of success on her
motion to vacate, almost ten years after the appellate court had
affirmed her convictions, was "purely speculative." It therefore
agreed with the IJ's decision to deny the motion, observed that
the motion was untimely, and held that St. John had failed to show
the exceptional circumstances necessary for sua sponte reopening.
Affirming the IJ, the BIA added that St. John would remain
removable subject to her mayhem conviction unless and until it
should be vacated.5 Finally, the agency, citing its prior
decisions, followed the rule that a post-conviction motion does
not render a conviction non-final, and so could not justify a stay
of removal proceedings. St. John timely petitioned this court for
review.
5 On March 28, 2023, while this petition was pending, a
Massachusetts Superior Court judge denied St. John's motion for a
new trial. St. John appealed that decision to the Massachusetts
Appeals Court. The parties have submitted briefing on the issue
and oral argument has been scheduled for October 11, 2023. See
United States v. Mercado, 412 F.3d 243, 247 (1st Cir. 2005) ("[W]e
can take judicial notice of state court records.").
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II. Discussion
We review the denial of a motion to reopen for abuse of
discretion. Thompson v. Barr, 959 F.3d 476, 479–80 (1st Cir.
2020); see Guerrero v. Holder,
766 F.3d 122, 126 (1st Cir. 2014).
To satisfy this standard, the petitioner must demonstrate that the
agency either "committed an error of law or exercised its judgment
in an arbitrary, capricious, or irrational way" in denying the
motion. Cabas v. Barr,
928 F.3d 177, 181 (1st Cir.
2019) (quoting Xue Su Wang v. Holder,
750 F.3d 87, 89 (1st Cir.
2014)). This analysis "necessarily hinges on the facts and
circumstances of each particular case," but to guide the process,
"we have explained that the BIA may abuse its discretion 'by
neglecting to consider a significant factor that appropriately
bears on the discretionary decision, by attaching weight to a
factor that does not appropriately bear on the decision, or by
assaying all the proper factors and no improper ones, but
nonetheless making a clear judgmental error in weighing them.'"
Sihotang v. Sessions,
900 F.3d 46, 50 (1st Cir. 2018) (quoting
Murillo-Robles v. Lynch,
839 F.3d 88, 91 (1st Cir. 2016)).
Noncitizens have a statutory right to file one motion to
reopen within ninety days of a removal order's becoming final,
with a few delineated exceptions. 8 U.S.C. § 1229a(c)(7)(C);
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8 C.F.R. § 1003.2(c). Neither party contends that a statutory
exception applies here.6
On appeal to the BIA, St. John argued that her "statutory
motion to reopen should [have] be[en] granted since there is
overwhelming evidence that she is completely innocent of the
charges that were the basis of the removal order." But the BIA
was unpersuaded. It too explained that a conviction remains final
for immigration purposes, and further noted that the IJ's denial
of St. John's statutory motion was appropriate because the motion
was untimely.
Before us, St. John argues that the agency has
misconstrued what it takes to render a conviction non-final for
immigration purposes. She argues that the agency's denial of her
motion rests on the erroneous legal conclusion that unless and
until her conviction is vacated, she is not eligible for relief
from its immigration consequences.
DHS contests, for several reasons, our jurisdiction and
ability to review St. John's challenge to the agency's decision to
deny her motion to reopen. DHS specifically argues that St. John's
6 In addition to satisfying these procedural hurdles, a
successful motion to reopen must: (1) "introduce new, material
evidence that was not available or discoverable" at the original
merits hearing and (2) "present a prima facie case of eligibility
for the relief sought." Jutus v. Holder, 723 F.3d 105, 110 (1st
Cir. 2013).
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claims were not exhausted, as required by 8 U.S.C. § 1252(d)(1),
and that they do not raise "colorable constitutional claims and
questions of law" that would permit judicial review under
§ 1252(a)(2)(D).
On the exhaustion issue, according to the government,
St. John never argued before the agency that her pending motion
for a new trial in state court negated the finality of her
convictions for immigration purposes. The government also argues
that St. John's failure to file a motion for reconsideration of
the BIA's decision means that her argument that the agency had
engaged in impermissible fact-finding was not exhausted. That
second aspect of the government's argument is, concededly,
precluded by the Supreme Court's decision in Santos-Zacaria v.
Garland, 598 U.S. 411 (2023), which held that, because
reconsideration is not available "as of right,"
8 U.S.C.
§ 1252(d)(1), a petitioner is not required to pursue it in order
to exhaust their remedies. Santos-Zacaria,
598 U.S. at 425.
On the different jurisdictional issue of whether St.
John presents "constitutional claims or questions of law" under
8 U.S.C. § 1252(a)(2)(D), the government disagrees with St. John's
argument that the agency's reasoning necessarily implicated legal
error.7
7 St. John argues that the BIA engaged in improper fact
finding in concluding her motion to reopen was time-barred. But
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We need not express a view on these procedural arguments.
Consistent with our approach in other immigration cases, we may
bypass these complex statutory jurisdictional questions when,
assuming that St. John's claims are reviewable, her petition
clearly fails on the merits. See Alvarado v. Holder, 743 F.3d
271, 276 (1st Cir. 2014) ("Here, the question of whether we possess
statutory jurisdiction under 8 U.S.C. § 1252(a)(2)(D) is not easily
answered, but the outcome on the merits is quite straightforward.
Thus, without further ado, we pass over the jurisdictional issue
and press on with the substance of petitioner['s] claims."); see
also Tacuri-Tacuri v. Garland,
998 F.3d 466, 472 (1st Cir. 2021)
("Fortunately, we need not decide [petitioner's jurisdictional
argument] because, as this Court has done before when statutory
jurisdiction is ambiguous but the merits are straightforward, we
bypass the jurisdictional issue and explain why the merits hold no
water.").
DHS says the BIA never made a finding as to whether the motion was
time-barred, and that the agency simply noted the incontrovertible
fact that the motion was "untimely" in the sense that it was filed
outside the statutory 90-day window. St. John does not dispute
the motion was out-of-time, but argues it was still timely because
the IJ found the deadline equitably tolled. But we need not, and
do not, reach the merits of this argument because our decision
today affirms the agency's denial on independent grounds. As such,
the timeliness of the motion is not outcome determinative; any
error bearing on that analysis would be harmless. We see no reason
to go any further.
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For immigration purposes, a conviction becomes final
when the defendant exhausts or waives the right to direct appellate
review. Matter of J. M. Acosta, 27 I&N Dec. 420, 432 (BIA 2018).
Because St. John exhausted her rights to direct appellate review,
it is undisputed that her conviction was final for immigration
purposes when she was ordered removed in 2013.
The question here is whether the agency abused its
discretion in declining to reopen an order of removal based on
final criminal convictions, where the sole basis argued is that
otherwise final state convictions are undergoing post-conviction
attack in state courts. In St. John's view, her collateral attack
on the merits of the convictions reverted the procedural posture
of her criminal case to one that is "no different than that of a[]
[noncitizen] whose conviction is being appealed" directly, thereby
undermining their finality. In the agency's view, that argument
is foreclosed by its prior decisions holding that "collateral
attacks . . . do not operate to negate the finality of [the]
conviction unless and until the conviction is overturned."8 Matter
8 St. John argues that those decisions were implicitly
overruled by the BIA's dicta in Matter of J. M. Acosta that
"[a]ppeals, including direct appeals, and collateral attacks that
do not relate to the underlying merits of the conviction will not
be given effect to eliminate the finality of the conviction." 27
I&N Dec. 420, 433 (2018). Reasoning by negative implication, St.
John argues that collateral attacks that do relate to the
conviction's underlying merits should render the conviction
non-final under Acosta. "The force of any negative implication,
however, depends on context." Marx v. Gen. Revenue Corp., 568
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of Madrigal, 21 I&N Dec. 323, 327 (BIA 1996); see also Matter of
Onyido,
22 I&N Dec. 522, 555 (BIA 1999) ("The availability of
post-conviction motions or other forms of collateral attack does
not affect the finality of a criminal conviction for immigration
purposes, unless and until the conviction has been overturned
pursuant to such a motion."). The BIA's rule accords with federal
courts' distinct treatment of post-conviction motions versus
direct appeals as of right, which underscores its reasonableness.
Most centrally, we do not consider a conviction final
when it is on direct appeal. See United States v. Pogue, 19 F.3d
663, 665 (D.C. Cir. 1994) ("'[T]he interests of justice ordinarily
require that [a defendant] not stand convicted without resolution
of the merits' of an appeal." (quoting United States v.
Moehlenkamp, 557 F.2d 126, 128 (7th Cir. 1977))). This is
reflected in the rule that a conviction is not final for
immigration purposes until all rights to direct appellate review
have been exhausted or waived. Acosta,
27 I&N Dec. at 432 ("[A]
conviction does not attain a sufficient degree of finality for
U.S. 371, 381 (2013). Here, the inference is particularly weak
because the statement was made in the context of discussing the
difference between challenges to the merits of a conviction versus
other types of challenges (e.g., "to alleviate immigration
hardships"), and no consideration was paid to the question of
post-conviction relief generally. Acosta, 27 I&N Dec. at 433. In
any case, the agency was not required to follow this permissible
but not mandatory negative implication of Acosta's dicta, and its
choice to reconcile that case with its prior, on-point decisions
was reasonable.
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immigration purposes until the right to direct appellate review on
the merits of the conviction has been exhausted or waived."). A
motion for post-conviction relief, on the other hand, attacks an
already final conviction, one that remains final throughout the
pendency of the challenge, unless and until relief is granted and
the conviction overturned. So too does it remain final for
immigration purposes. See id. We therefore discern no abuse of
discretion in the agency's denial of St. John's statutory motion
to reopen.
III. Conclusion
For the foregoing reasons, St. John's petition for
review is denied.
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