USCA11 Case: 20-13764 Date Filed: 08/18/2021 Page: 1 of 10 [DO NOT PUBLISH] IN THE UNITED STATES COURT OF APPEALS FOR THE ELEVENTH CIRCUIT ________________________ No. 20-13764 Non-Argument Calendar ________________________ Agency No. A023-602-279 JUAN GISPERT DE ARMAS, Petitioner, versus U.S. ATTORNEY GENERAL, Respondent. ________________________ Petition for Review of a Decision of the Board of Immigration Appeals ________________________ (August 18, 2021) Before JILL PRYOR, GRANT and ANDERSON, Circuit Judges. PER CURIAM: USCA11 Case: 20-13764 Date Filed: 08/18/2021 Page: 2 of 10 Juan Gispert de Armas, a native and citizen of Cuba, petitions for review of the Board of Immigration Appeals’ (“BIA”) order affirming the Immigration Judge’s (“IJ”) denial of his motion to reconsider the IJ’s order denying his motion to reopen removal proceedings. After careful review, we deny his petition. I. Gispert de Armas emigrated to the United States in 1980 during the Mariel Boatlift and was lawfully admitted pursuant to the Cuban Refugee Adjustment Act. In 1994, he pled guilty to federal crimes relating to smuggling and served a one- year term of imprisonment. In 1997, the former Immigration and Naturalization Service initiated removal proceedings against him, charging him as removable under 8 U.S.C. § 1227(a)(2)(A)(iii), as a noncitizen who after admission was convicted of an aggravated felony. Gispert de Armas filed an application for asylum and withholding of removal, alleging a fear of persecution on account of political opinion. An IJ found him removable as charged, terminated his immigrant status, and pretermitted his asylum application because of his aggravated felony conviction. But the IJ granted him withholding of removal. On April 29, 2005, Gispert de Armas filed a motion to reopen to seek a waiver of deportability under former § 212(c) of the Immigration and Nationality Act. Former § 212(c) provided a discretionary waiver of deportation if a lawful 2 USCA11 Case: 20-13764 Date Filed: 08/18/2021 Page: 3 of 10 permanent resident with an aggravated felony conviction had served five years or less in prison. It was repealed on April 1, 1997, but the Supreme Court has since held that § 212(c) relief may be available to legal permanent residents who pled guilty to an aggravated felony before the date of the repeal. I.N.S. v. St. Cyr, 533 U.S. 289, 294–97, 314–15 (2001). An IJ denied the motion to reopen. The IJ noted that a statutory motion to reopen under 8 U.S.C. § 1229(a)(c)(6)(C)(i) generally must be filed within 90 days of the final administrative order, and under 8 C.F.R. § 1003.44(h) a special motion seeking a § 212(c) waiver by a noncitizen who pled guilty before the statute’s repeal date had to be filed no later than April 26, 2005. Because Gispert de Armas filed his motion on April 29, it was untimely under either requirement. In May 2012, Gispert de Armas filed a pro se second motion to reopen to seek § 212(c) relief. In the motion, he argued that his counsel who filed his first motion to reopen was ineffective. Gispert de Armas stated that he …
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