ORELLANA HERRERA v. WILKINSON (2021)

United States Court of Appeals, Ninth Circuit.2021-02-23No. No. 19-71262

Summary · law.co

Holding. The petition for review is denied in part and dismissed in part. The BIA did not abuse its discretion in denying the motions to reopen and terminate or to reopen removal proceedings, and the court lacks jurisdiction to review the denial of sua sponte reopening.

Leonel Orellana-Herrera, a Guatemalan national, sought review of the Board of Immigration Appeals' denial of his motion to reopen and terminate his removal proceedings. He argued that the immigration court lacked jurisdiction because his Notice to Appear contained deficiencies in identifying the time, date, and place of his hearing. He also filed a motion to reopen his removal proceedings more than eight months after his removal order became final, claiming changed country conditions in Guatemala warranted an exception to the filing deadline.

The court found no abuse of discretion in the BIA's denial of either motion. Established precedent forecloses the jurisdictional argument—omissions in the Notice to Appear do not deprive an immigration court of authority over removal cases. The late-filed motion to reopen likewise failed because Orellana-Herrera did not demonstrate materially changed circumstances in Guatemala that would qualify for the regulatory exception allowing reopening outside the normal time window. The court also lacked jurisdiction to review the BIA's refusal to reopen sua sponte, as Orellana-Herrera raised no legal or constitutional error on that point.

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

Key issues

Whether defects in a Notice to Appear deprive an immigration court of jurisdiction
Whether a late-filed motion to reopen qualifies for exception based on changed country conditions
Scope of appellate jurisdiction to review denial of sua sponte reopening

Procedural posture

Orellana-Herrera petitioned for review of a BIA order denying his motion to reopen and terminate removal proceedings and, alternatively, denying his motion to reopen.

Authorities cited

No cited authorities resolved to law.co cases yet.

Opinion · public domain

MEMORANDUM **

Leonel Orellana-Herrera, a native and citizen of Guatemala, petitions for review of the Board of Immigration Appeals’ (“BIA”) order denying his motion to reopen and terminate and, alternatively, to reopen 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, Najmabadi v. Holder, 597 F.3d 983, 986 (9th Cir. 2010), and the denial of a motion to terminate, Dominguez v. Barr, 975 F.3d 725, 734 (9th Cir. 2020). We review de novo questions of law. Dominguez, 975 F.3d at 734. We deny in part and dismiss in part the petition for review.

The BIA did not abuse its discretion in denying Orellana-Herreras motion to reopen and terminate where his contention that the immigration court lacked jurisdiction over his proceedings 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”).

The BIA also did not abuse its discretion in denying Orellana-Herreras motion to reopen removal proceedings as untimely, where it was filed eight months after the order of removal became final, and Orellana-Herrera has not established materially changed country conditions in Guatemala to qualify for the regulatory exception to the filing deadline. See 8 C.F.R. § 1003.2(c)(2), (3)(ii); Najmabadi, 597 F.3d at 987-90 (evidence must be “qualitatively different” to warrant reopening).

We lack jurisdiction to review the BIAs denial of sua sponte reopening, where Orellana-Herrera has not raised a legal or constitutional error. See Bonilla v. Lynch, 840 F.3d 575, 588 (9th Cir. 2016) (“[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.”); see also Najmabadi, 597 F.3d at 990 (the agency does not have to write an exegesis on every contention).

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.