YANELY ALEXANDRA RIVAS v. GARLAND (2021)

United States Court of Appeals, Ninth Circuit.2021-09-21No. No. 20-71200

Summary · law.co

Holding. The court denied the petition for review in part and dismissed it in part, finding the BIA did not abuse its discretion in denying the motion to reconsider, and the court lacked jurisdiction to review the underlying removal order because the petition was filed outside the mandatory 30-day deadline.

Yanely Alexandra Rivas and her daughters, citizens of El Salvador, sought court review of the Board of Immigration Appeals' decision to deny their motion for reconsideration of an immigration matter. The petitioners filed their appeal more than five months after the BIA issued its initial decision, well beyond the mandatory 30-day deadline for seeking judicial review. Additionally, the petitioners' motion to reconsider failed to point to any legal or factual mistakes in the BIA's prior ruling, which is required under immigration regulations.

The court found no abuse of discretion by the BIA in rejecting the motion to reconsider because the petitioners had not identified any errors. The court also lacked authority to review the underlying removal decision itself due to the untimely filing. The petitioners' claims that their due process rights were violated were rejected as lacking sufficient legal foundation.

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

Key issues

Whether the BIA abused its discretion in denying a motion to reconsider filed without identifying legal or factual error
Whether the court had jurisdiction to review an underlying removal order when the petition for review was filed more than five months after the final decision
Whether petitioners' due process rights were violated in immigration proceedings

Procedural posture

Petitioners filed a pro se petition for review of the BIA's order denying their motion to reconsider a removal decision issued in November 2019, with the petition filed in April 2020.

Authorities cited

No cited authorities resolved to law.co cases yet.

Opinion · public domain

MEMORANDUM **

Yanely Alexandra Rivas

and her daughters, natives and citizens of El Salvador, petition pro se for review of the Board of Immigration Appeals’ (“BIA”) order denying their motion to reconsider. Our jurisdiction is governed by 8 U.S.C. § 1252. We review for abuse of discretion the BIAs denial of a motion to reconsider. Ayala v. Sessions, 855 F.3d 1012, 1020 (9th Cir. 2017). We review de novo claims of due process violations in immigration proceedings. Jiang v. Holder, 754 F.3d 733, 738 (9th Cir. 2014). We deny in part and dismiss in part the petition for review.

The BIA did not abuse its discretion in denying petitioners’ motion to reconsider where they failed to identify any error of law or fact in the BIAs prior decision. See 8 C.F.R. § 1003.2(b)(1); Ma v. Ashcroft, 361 F.3d 553, 558 (9th Cir. 2004) (“A petitioners motion to reconsider must identify a legal or factual error in the BIAs prior decision.”).

To the extent petitioners challenge the BIAs underlying dismissal order, we lack jurisdiction to review that decision because it was issued on November 29, 2019, and petitioners did not file this petition for review until April 27, 2020. See Singh v. Lynch, 835 F.3d 880, 882 (9th Cir. 2016) (“A petition for review must be filed not later than 30 days after the date of the final order of removal. ․ This deadline is mandatory and jurisdictional.” (internal citations and quotation marks omitted)).

Petitioners’ contentions that the agency violated their right to due process fail. See Lata v. INS, 204 F.3d 1241, 1246 (9th Cir. 2000) (requiring error to prevail on a due process claim).

The temporary stay of removal remains in place until issuance of the mandate.

PETITION FOR REVIEW DENIED in part; DISMISSED in part.

FOOTNOTES

. Although petitioners name appears as “Yanely Alexandra Rivas” in the Petition for Review and Answering Brief, it appears as “Yaneli Alexandra Rivas” in the agency decisions and Notice to Appear, and both spellings appear in the Opening Brief.