Pedro Rafael MONTESQUIEU, Petitioner, v. EriC H. HOLDER, Jr., United States Attorney General, Respondent, 536 F. App'x 145

SUMMARY ORDER Pedro Rafael Montesquieu, a native and citizen of the Dominican Republic, seeks review of a February 21, 2012, order of the BIA denying his motion to reopen proceedings. See Pedro Rafael Montesquieu, No. [ AXXX XXX XXX ] (B.I.A. Feb. 21, 2012). We assume the parties’ familiarity with the underlying facts, procedural history, and issues presented for review. We lack jurisdiction over a petition for review where the petitioner has been convicted of a controlled substance offense, except to the extent the petitioner presents questions of law or constitutional claims.

See 8 U.S.C. § 1252(a)(2)(C)-(D); Garcia-Padron v. Holder, 558 F.3d 196, 198-199 (2d Cir.2009). Montesquieu presented evidence that he was pardoned by the State of New York for a 2000 conviction for attempted criminal sale of a controlled substance. Montesquieu does not, however, dispute the finding that he was convicted of criminal possession of marijuana in 1996, and was inadmissible based on that conviction. Accordingly, the jurisdictional bar applies and our review is limited to constitutional claims or questions of law regarding the BIA’s denial of reopening.

Montesquieu raises no challenge to the BIA’s denial of his motion as untimely and number-barred and we see no error in the BIA’s decision. An alien seeking to reopen proceedings is required to file a motion to reopen no later than 90 days after the date on which the final administrative decision was rendered and is permitted to file only one such motion. See 8 U.S.C. § 1229a(c)(7)(A), (C); 8 C.F.R. § 1003.2(c)(2).

There is no dispute that Montesquieu’s motion to reopen, filed in 2011, was untimely and number-barred because his order of deportation became final in 2008 and he had filed an earlier motion to reopen proceedings. To the extent Montesquieu challenges the BIA’s refusal to reopen the proceedings sua sponte, we lack jurisdiction over that decision, absent an indication that the agency misperceived the legal background of the case in declining to reopen sua sponte. See Mahmood v. Holder, 570 F.3d 466, 469 (2d Cir.2009).

The record indicates that Montesquieu was charged with inadmissibility, not deportability, and thus the pardon did not affect the finding of removability. See 8 U.S.C. § 1227(a)(2)(A)(vi) (permitting waiver of removability where the alien received a pardon); but see generally 8 U.S.C. § 1182 (listing no waiver for pardoned offenses). Moreover, the 1996 marijuana conviction continued to be an independent basis for inadmissibility.

Montesquieu argues that the BIA mis-perceived the legal background because it failed to consider that the pardon rendered him eligible for cancellation of removal, and that exceptional circumstances, in the form of hardship to his family, warranted reopening. He failed, however, to raise those arguments in his motion to reopen, and the arguments are therefore waived. See Lin Zhong v. U.S.

Dep’t of Justice, 480 F.3d 104, 119-20 (2d Cir.2007); 8 C.F.R. § 1003.2(c)(1) (“[a] motion to reopen proceedings shall not be granted unless it appears to the Board that evidence sought to be offered is material and was not available and could not have been discovered or presented at the former hearing” and “must be accompanied by the appropriate application for relief’). For the foregoing reasons, the petition for review is DISMISSED.

As we have completed our review, any stay of removal that the Court previously granted in this petition is VACATED, and any pending motion for a stay of removal in this petition is DENIED as moot. Any pending request for oral argument in this petition is DENIED in accordance with Federal Rule of Appellate Procedure 34(a)(2), and Second Circuit Local Rule 34.1(b).