NOT RECOMMENDED FOR FULL-TEXT PUBLICATION File Name: 19a0487n.06 No. 18-4207 UNITED STATES COURT OF APPEALS FOR THE SIXTH CIRCUIT FILED Sep 19, 2019 DEBORAH S. HUNT, Clerk ELISEO PEREYRA, ) ) Petitioner, ) ON PETITION FOR REVIEW OF ) AN ORDER OF THE BOARD OF v. ) IMMIGRATION APPEALS ) WILLIAM P. BARR, Attorney General, ) ) OPINION Respondent. ) ) Before: MOORE, McKEAGUE, and LARSEN, Circuit Judges. KAREN NELSON MOORE, Circuit Judge. Eliseo Pereyra petitions for review of the Board of Immigration Appeals’ (“BIA”) denial of his motion to reopen his removal proceedings. We conclude that we are without jurisdiction to review the BIA’s decision because it was made pursuant to the BIA’s authority to reopen sua sponte. We also conclude that the BIA had jurisdiction to institute removal proceedings against Pereyra. We therefore dismiss Pereyra’s petition for review of the BIA’s order. I. BACKGROUND Pereyra is a native and citizen of Mexico who asserts that he first entered the United States without inspection in 1995. Pet’r Br. at 3. He married Elizabeth Bustos, a United States citizen in 1997. Bustos filed I-130 and I-485 petitions on Pereyra’s behalf, seeking to adjust his immigration status. In 1999 these petitions were denied for lack of prosecution. AR at 291, 243. No. 18-4207, Pereyra v. Barr On September 8, 1999, the Immigration and Naturalization Service issued Pereyra a Notice to Appear (“NTA”), asserting that he was subject to removal under §§ 212(a)(6)(A)(i) & 237(a)(1)(A) of the Immigration and Nationality Act. Id. at 22. The initial NTA did not specify the time or place of Pereyra’s hearing. Id. Pereyra subsequently received a notice of a hearing date and location and attended removal hearings. Id. at 288. During this process, Bustos filed a second petition on Pereyra’s behalf, which the United States Citizenship and Immigration Services denied upon concluding that their marriage was fraudulent. Id. at 258–63. Pereyra and Bustos divorced, and Pereyra married Crystal Joy Pereyra on March 15, 2005. His new wife had a daughter from a prior relationship, and together the couple had a son. Pereyra’s removal proceedings continued, and on April 8, 2005, his attorney wrote a letter to the Immigration Judge (“IJ”) informing him that Pereyra planned to voluntarily depart the United States the following day and would not appear at his hearing scheduled for April 19, 2005. Id. at 249. Because Pereyra failed to appear at that hearing, the IJ ordered him removed in absentia. Id. at 230. Pereyra attempted to reenter the United States in early May of 2005 and was removed. Id. at 75–78. He tried again in late May, was apprehended, and returned to Mexico pursuant to an expedited removal order. Id. at 80–82. He then reentered the United States on June 30, 2005 without inspection. Pet’r Br. at 6. On April 22, 2011, slightly over six years after the IJ ordered him removed in absentia, Pereyra filed a “Motion to Vacate Prior Removal Order and to Reopen Proceedings.” AR at 85– 2 No. ...
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