GUERRA v. GARLAND (2021)

United States Court of Appeals, Ninth Circuit.2021-08-26No. No. 20-70737

Summary · law.co

Holding. The petition for review was denied in part and dismissed in part. The Board of Immigration Appeals did not abuse its discretion in denying the motion to reopen as untimely and numerically barred, and the petitioners failed to establish grounds for reopening or to properly raise certain arguments for appellate review.

Two Salvadoran nationals sought to reopen their deportation proceedings to pursue asylum and other forms of relief decades after their removal order became final. The Board of Immigration Appeals rejected their motion to reopen as both numerically barred—being their second such motion—and untimely, filed thirty-four years after the original removal order. The petitioners did not demonstrate that any statutory or regulatory exception applied or that equitable tolling was appropriate given the extraordinary delay.

The court rejected most of the petitioners' arguments on appeal. Their claim that they qualified as members of a particular class entitled to humanitarian asylum was waived because they did not adequately raise it in their opening brief. The petitioners also failed to establish how a Supreme Court decision addressing a different statutory scheme supported their motion to reopen for suspension of deportation. Additionally, arguments regarding eligibility under separate relief legislation were not properly presented to the Board and therefore could not be reviewed on appeal.

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

Key issues

Whether a motion to reopen filed 34 years after a removal order became final was timely
Whether equitable tolling applied to the deadline for filing a motion to reopen
Whether petitioners waived arguments by failing to adequately raise them in their opening brief
Whether a Supreme Court decision on a different statutory scheme supported petitioners' motion to reopen

Procedural posture

The petitioners appealed the Board of Immigration Appeals' denial of their motion to reopen deportation proceedings that had been finalized thirty-four years earlier.

Authorities cited

No cited authorities resolved to law.co cases yet.

Opinion · public domain

MEMORANDUM **

Alberto De Jesus-Fernandez Guerra and Elsa Avila De Guerra, natives and citizens of El Salvador, petition for review of the Board of Immigration Appeals’ (“BIA”) order denying their motion to reopen deportation proceedings. Our jurisdiction is governed by 8 U.S.C. § 1252. We review for abuse of discretion the BIAs denial of a motion to reopen. Perez v. Mukasey, 516 F.3d 770, 773 (9th Cir. 2008). 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 reopen to apply for asylum and related relief as numerically barred and untimely, where it was the second such motion and was filed thirty-four years after the order of removal became final, and where petitioners did not establish that a statutory or regulatory exception applies or that equitable tolling is warranted. See 8 U.S.C. § 1229a(c)(7)(A), (C)(i)-(ii); 8 C.F.R. § 1003.2(c)(3); Avagyan v. Holder, 646 F.3d 672, 679 (9th Cir. 2011) (deadline for filing motion to reopen can be equitably tolled “when a petitioner is prevented from filing because of a deception, fraud, or error, as long as the petitioner acts with due diligence” in discovering such circumstances). Petitioners do not challenge the BIAs determination that they are not members of the class identified in Rojas v. Johnson, 305 F. Supp. 3d 1176 (W.D. Wash. 2018). See Martinez-Serrano v. INS, 94 F.3d 1256, 1259-60 (9th Cir. 1996) (issues not specifically raised and argued in a partys opening brief are waived). We reject as unsupported by the record petitioners’ contention that the BIA erred in not addressing their humanitarian asylum claim, where petitioners argued they were entitled to humanitarian asylum as Rojas class members.

The BIA did not abuse its discretion in denying petitioners’ motion to reopen to apply for suspension of deportation, where petitioners provided no legal support for their assertion that Pereira v. Sessions, ––– U.S. ––––, 138 S. Ct. 2105, 201 L.Ed.2d 433 (2018), which addresses a different statutory scheme, applies to their proceedings.

We lack jurisdiction to consider petitioners’ contentions regarding their eligibility for relief under the Nicaraguan Adjustment and Central American Relief Act. See Barron v. Ashcroft, 358 F.3d 674, 677-78 (9th Cir. 2004) (court lacks jurisdiction to consider arguments not raised to BIA).

Petitioners’ contentions that the BIA failed to sufficiently explain its decision, failed to address issues, violated their right to due process, or otherwise erred in its analysis of their motion fail. See Najmabadi v. Holder, 597 F.3d 983, 990 (9th Cir. 2010) (the agency adequately considered evidence and sufficiently announced its decision); Lata v. INS, 204 F.3d 1241, 1246 (9th Cir. 2000) (requiring error to prevail on a due process claim).

PETITION FOR REVIEW DENIED in part; DISMISSED in part.