RODRIGUEZ GARCIA v. GARLAND (2021)

United States Court of Appeals, Ninth Circuit.2021-07-01No. No. 19-71735

Summary · law.co

Holding. The court denied Rodriguez-Garcia's petition for review, concluding that the Board of Immigration Appeals did not abuse its discretion in rejecting his motion to reopen and reconsider as untimely and in rejecting his jurisdictional arguments.

Pedro Rodriguez-Garcia, a Mexican citizen, sought review of the Board of Immigration Appeals' decision to deny his motion to reopen and reconsider his removal order. Rodriguez-Garcia filed his motion more than four years after his removal order became final and did not establish that he qualified for equitable tolling of the deadline. He also raised jurisdictional challenges based on a Supreme Court decision, but those arguments failed under controlling Ninth Circuit precedent.

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

Key issues

Timeliness of motion to reopen and reconsider after removal order became final
Equitable tolling for late motions
Jurisdictional challenges under Pereira v. Sessions

Procedural posture

This is a petition for review of a Board of Immigration Appeals order denying a motion to reopen and reconsider a removal order.

Authorities cited

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Opinion · public domain

MEMORANDUM **

Pedro Rodriguez-Garcia, a native and citizen of Mexico, petitions for review of the Board of Immigration Appeals’ (“BIA”) order denying his motion to reopen and reconsider. We have jurisdiction under 8 U.S.C. § 1252. We review for abuse of discretion the BIAs denial of a motion to reopen and a motion to reconsider. Mohammed v. Gonzales, 400 F.3d 785, 791 (9th Cir. 2005). We review de novo questions of law. Bonilla v. Lynch, 840 F.3d 575, 581 (9th Cir. 2016). We deny the petition for review.

The BIA did not abuse its discretion in denying Rodriguez-Garcias motion to reopen and reconsider as untimely, where he filed the motion more than 4 years after the order of removal became final and Rodriguez-Garcia failed to demonstrate that he met the requirements for equitable tolling. See 8 C.F.R. §§ 1003.2(b)(2), (c)(2); see also Avagyan v. Holder, 646 F.3d 672, 677-79 (9th Cir. 2011) (discussing the circumstances in which a movant may be entitled to equitable tolling).

The BIA did not abuse its discretion in denying Rodriguez-Garcias motion to reopen and reconsider where his challenges to the agencys jurisdiction under Pereira v. Sessions, ––– U.S. ––––, 138 S. Ct. 2105, 201 L.Ed.2d 433 (2018), fail under Karingithi v. Whitaker, 913 F.3d 1158, 1160-62 (9th Cir. 2019).

The temporary stay of removal remains in place until issuance of the mandate. The motion for a stay of removal is otherwise denied.

PETITION FOR REVIEW DENIED.