ARRIAGA CRUZ v. WILKINSON (2021)

United States Court of Appeals, Ninth Circuit.2021-03-08No. No. 19-70213

Summary · law.co

Holding. The petition for review was denied in part and dismissed in part. The court affirmed the Immigration Judge's decision to deem the applications abandoned for failure to meet filing deadlines and rejected constitutional claims of due process violation, while dismissing as beyond its jurisdiction claims challenging eligibility for relief that were not properly before the administrative agencies.

Armando Arriaga-Cruz, a Mexican citizen, petitioned for review of a removal order after the Immigration Judge deemed his applications for cancellation of removal, asylum, withholding of removal, and Convention Against Torture protection abandoned due to his failure to file them by the established deadline. The court examined whether the Immigration Judge abused discretion in enforcing the filing deadline, whether constitutional protections were violated, and whether the court had authority to review the merits of Arriaga-Cruz's eligibility claims.

The court found that the Immigration Judge properly exercised discretion in setting and enforcing the filing deadline under applicable regulations, and that Arriaga-Cruz received multiple opportunities to proceed, including continuances and chances to retain new counsel. The court determined that the proceedings were not fundamentally unfair and that no evidence supported claims of bias or prejudice. Because Arriaga-Cruz failed to timely file his applications for relief, he did not exhaust his administrative remedies regarding eligibility, which prevented the court from reviewing those substantive arguments on the merits.

Summary generated by law.co from the public-domain opinion. The opinion text itself is public domain.

Key issues

Whether an Immigration Judge abused discretion in deeming applications abandoned for missing filing deadlines
Whether filing deadline enforcement violated due process rights
Whether the court had jurisdiction to review substantive eligibility arguments when applications were not timely filed

Procedural posture

Arriaga-Cruz sought judicial review of a Board of Immigration Appeals order affirming the Immigration Judge's decision to order his removal to Mexico and deny his various applications for relief.

Authorities cited

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Opinion · public domain

MEMORANDUM ***

Petitioner Armando Arriaga-Cruz (“Arriaga-Cruz”), a native and citizen of Mexico, seeks review of a Board of Immigration Appeals (“BIA”) order dismissing Arriaga-Cruzs appeal from the Immigration Judges (“IJ”) decision ordering removal to Mexico. The IJ denied Arriaga-Cruzs cancellation of removal application for failure to properly file it by the deadline, and deemed as abandoned Arriaga-Cruzs application for asylum, withholding of removal, and protection under the Convention Against Torture (“CAT”). This Court has jurisdiction under 8 U.S.C. § 1252 to review both the constitutional challenge and the BIAs order affirming the IJs decision to deny the applications. We deny the petition in part and dismiss in part.

1. The BIA properly concluded that Arriaga-Cruz abandoned his applications for relief from removal by failing to file by the deadline set by the IJ. The IJ acted well within his discretion under 8 C.F.R. § 1003.31(c). See Taggar v. Holder, 736 F.3d 886, 889 (9th Cir. 2013) (holding this Court reviews for abuse of discretion “an IJs decision to deem applications waived for failing to adhere to deadlines imposed under 8 C.F.R. § 1003.31”). As of the master calendar hearing on July 10, 2018, Arriaga-Cruz had not filed proof of fee payment or an asylum application, which were due October 30, 2017, over seven months earlier. Because the IJ had broad discretion to set and extend time limits to file the applications, he properly deemed the applications waived when Arriaga-Cruz did not properly file them within the time set. 8 C.F.R. § 1003.31(c); Taggar, 736 F.3d at 889–90.

2. The IJ did not deny Arriaga-Cruz due process of law. Contrary to Arriaga-Cruzs allegations, the proceedings were not “so fundamentally unfair” that he “was prevented from reasonably presenting his case.” Colmenar v. INS, 210 F.3d 967, 971 (9th Cir. 2000) (internal citation omitted). The administrative record shows that the IJ afforded Arriaga-Cruz multiple opportunities to move forward with his case, including granting continuances and providing Arriaga-Cruz the opportunities to find new counsel, make a motion to reconsider, and file an application fee waiver request.

Here, the record lacks evidence of any prejudice or bias from the IJ. Instead, it demonstrates that the IJ acted as a neutral factfinder and not a “partisan adjudicator seeking to intimidate [Arriaga-Cruz] and his counsel.” Colmenar, 210 F.3d at 971; see Vargas-Hernandez v. Gonzales, 497 F.3d 919, 926 (9th Cir. 2007); Reyes-Melendez v. INS, 342 F.3d 1001, 1007 (9th Cir. 2003).

3. We lack jurisdiction to consider the merits of Arriaga-Cruzs arguments pertaining to eligibility for relief. He made no timely application for the relief he now seeks. Therefore, the applications for cancellation of removal, asylum, withholding of removal, and CAT protection were not properly before the IJ or BIA. The only arguments properly raised before the BIA were whether the IJ abused his discretion in deeming the applications for relief abandoned and whether the IJ violated Arriaga-Cruzs constitutional rights. Arriaga-Cruz failed to exhaust his administrative remedies with respect to eligibility for any relief from removal, which precludes our review. 8 U.S.C. § 1252(d)(1); see Honcharov v. Barr, 924 F.3d 1293, 1296 n.2 (9th Cir. 2019); Barron, 358 F.3d at 678.

PETITION FOR REVIEW DENIED IN PART and DISMISSED IN PART.

FOOTNOTES

. Arriaga-Cruz filed no motion to reconsider. Also, as Respondent points out in his brief, Arriaga-Cruz did not make a motion to reopen. See 8 U.S.C. § 1229a(c)(7)(C)(i); Puga v. Chertoff, 488 F.3d 812, 815–16 (9th Cir. 2007); see also Liu v. Waters, 55 F.3d 421, 424 (9th Cir. 1995) (holding a petitioner must first make a motion to reopen with the BIA to raise a claim of ineffective assistance of counsel). Thus, we lack jurisdiction to consider any unexhausted claim. 8 U.S.C. § 1252(d)(1); see Barron v. Ashcroft, 358 F.3d 674, 678 (9th Cir. 2004).