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LEMUS QUINTEROS v. GARLAND (2021)

United States Court of Appeals, Ninth Circuit.2021-04-26No. No. 19-71777

Summary

Holding. The petition for review is denied in part and dismissed in part. The Board of Immigration Appeals did not abuse its discretion in denying the motion to reopen because the petitioner's jurisdictional challenge is foreclosed by prior circuit precedent, and the court lacks jurisdiction to review other arguments not raised before the agency or to review sua sponte reopening decisions absent legal or constitutional error.

Joselyn Liseth Lemus-Quinteros, a citizen of El Salvador facing removal, sought review of the Board of Immigration Appeals' decision denying her motion to reopen and terminate removal proceedings. She challenged the immigration agency's jurisdiction based on alleged defects in her notice to appear, relying on a Supreme Court decision about jurisdictional requirements. However, binding Ninth Circuit precedent already established that the absence of time, date, and place information in her notice did not strip the immigration court of authority to hear her case, making her jurisdictional challenge unavailable as a legal basis for reopening.

The court declined to review most of Lemus-Quinteros' remaining arguments because she had not presented them to the Board of Immigration Appeals beforehand. The court also lacked authority to review the agency's decision not to reopen sua sponte because she identified no legal or constitutional error in the Board's reasoning. A temporary stay of her removal remains in effect, but her request for a broader stay was otherwise rejected.

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

Key issues

  • Whether omissions in a notice to appear deprive an immigration court of jurisdiction
  • Standards for reviewing denial of a motion to reopen in removal proceedings
  • Scope of appellate jurisdiction over Board of Immigration Appeals decisions
  • Preservation of arguments before administrative agencies

Procedural posture

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

Authorities cited

No cited authorities resolved to law.co cases yet.

Opinion

MEMORANDUM **

Joselyn Liseth Lemus-Quinteros, a native and citizen of El Salvador, petitions for review of the Board of Immigration Appeals’ (“BIA”) order denying her motion to reopen and terminate removal proceedings. Our jurisdiction is governed by 8 U.S.C. § 1252. We review for abuse of discretion the denial of a motion to reopen and review de novo questions of law. Bonilla v. Lynch, 840 F.3d 575, 581 (9th Cir. 2016). We deny in part and dismiss in part the petition for review.

The agency did not abuse its discretion in denying Lemus-Quinteross motion to reopen and terminate removal proceedings where her challenge to the agencys jurisdiction under Pereira v. Sessions, ––– U.S. ––––, 138 S. Ct. 2105, 201 L.Ed.2d 433 (2018), is foreclosed by Aguilar Fermin v. Barr, 958 F.3d 887, 895 (9th Cir. 2020) (“the lack of time, date, and place in the NTA sent to [petitioner] did not deprive the immigration court of jurisdiction over her case”).

In light of this disposition, we lack jurisdiction to review the BIAs denial of sua sponte reopening, where Lemus-Quinteros has not raised a legal or constitutional error. See Bonilla, 840 F.3d at 588 (“[T]his court has jurisdiction to review Board decisions denying sua sponte reopening for the limited purpose of reviewing the reasoning behind the decisions for legal or constitutional error.”).

We lack jurisdiction to consider Lemus-Quinteross contentions concerning timeliness, changed circumstances, and prima facie eligibility because she did not raise them before the BIA. See Barron v. Ashcroft, 358 F.3d 674, 677-78 (9th Cir. 2004) (court lacks jurisdiction to review claims not presented to the agency).

The temporary stay of removal remains in place until issuance of the mandate. The motion for a stay of removal (Docket Entry No. 1) is otherwise denied.

PETITION FOR REVIEW DENIED in part; DISMISSED in part.