CARR v. GARLAND (2021)

United States Court of Appeals, Ninth Circuit.2021-07-21No. Nos. 18-72667, 19-71607

Summary · law.co

Holding. The petitions for review are denied. The BIA did not err in dismissing Carr's appeal regarding the California immigration court's denial of his motion to terminate removal proceedings, and the court lacks jurisdiction to review the BIA's decision not to sua sponte reopen the Georgia proceedings.

Otis Carr, a Jamaican national, challenged the Board of Immigration Appeals' refusal to reopen removal proceedings in Georgia and terminate removal proceedings in California. The court found that the California removal proceedings were properly initiated by a new Notice to Appear filed after both the New York and Georgia proceedings had concluded, making those prior proceedings irrelevant to the current case. Additionally, Carr failed to raise certain arguments before the BIA, preventing appellate review of those claims.

The court rejected Carr's attempt to obtain relief under a repealed immigration statute based on pre-1996 proceedings, noting that the subsequent California proceedings were independent and based on separate grounds for removability. The court also declined to review Carr's challenge to the BIA's decision not to reopen the Georgia proceedings on its own initiative, finding that decision did not contain legal or constitutional error apparent on the face of the order.

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

Key issues

Whether concurrent removal proceedings in multiple jurisdictions violate immigration law
Whether relief under a repealed statute remains available based on earlier proceedings
Whether the BIA properly declined to sua sponte reopen proceedings without legal error
Whether unexhausted arguments before the BIA can be reviewed on appeal

Procedural posture

Carr petitioned for review of two BIA decisions denying his motion to reopen Georgia removal proceedings and his motion to terminate California removal proceedings.

Authorities cited

No cited authorities resolved to law.co cases yet.

Opinion · public domain

MEMORANDUM **

Otis Carr, a native and citizen of Jamaica, seeks review of the decisions of the Board of Immigration Appeals (BIA) denying his motion to reopen the removal proceedings in Georgia immigration court and denying his motion to terminate the removal proceedings in California immigration court. We have jurisdiction under 8 U.S.C. § 1252, and we deny the petitions for review.

Even if we assume immigration law precludes concurrent proceedings, the Notice to Appear (NTA) that initiated the California proceedings on December 15, 2017 (which resulted in the current removal order under review) was filed after the termination of the New York proceedings and after the Georgia proceedings were final. See 8 C.F.R. § 1003.14. Therefore, the BIA did not err in dismissing Carrs appeal of the California immigration courts denial of his motion to terminate the removal proceedings.

Because the New York proceedings were properly terminated,

we reject Carrs argument that he is still entitled to seek relief under § 212(c) of the Immigration and Nationality Act due to the pendency of New York proceedings that had commenced before the Illegal Immigration Reform and Immigrant Responsibility Act of 1996 (IIRIRA)’s effective date. Cf. Pascua v. Holder, 641 F.3d 316, 318–19 (9th Cir. 2011) (holding that while IIRIRA repealed § 212(c), relief under this provision is available in deportation proceedings that commenced before IIRIRAs effective date). Neither the New York proceedings nor the Georgia proceedings had any effect on the second California proceedings which were initiated by the filing of a new NTA based on the independent ground that in 2017, he was “an alien present in the United States who has not been admitted or paroled.” Carr did not challenge the NTAs charges of removability before the BIA.

Before the BIA, Carr did not dispute that his motion to reopen proceedings in the Georgia immigration court was untimely. Nor did he argue that the untimeliness should be excused under equitable tolling or equitable estoppel principles. Therefore, to the extent Carr now argues that his untimeliness should be excused, we do not have jurisdiction to review this unexhausted claim on appeal. 8 U.S.C. § 1252(d)(1); Zara v. Ashcroft, 383 F.3d 927, 930 (9th Cir. 2004).

In declining to sua sponte reopen the Georgia proceedings, the BIA did not reach a legal conclusion on whether the Georgia immigration court properly maintained jurisdiction to adjudicate the 2012-2013 removal proceedings. Instead, the BIA concluded that regardless of its merits, Carrs jurisdictional argument did not constitute an exceptional situation that would warrant a sua sponte reopening. Because the BIAs order did not contain a legal or constitutional error plain on its face, we lack jurisdiction to review its decision. See Lona v. Barr, 958 F.3d 1225, 1232, 1234 (9th Cir. 2020).

PETITION DENIED.

FOOTNOTES

. The record does not show that Carr opposed the governments motion to terminate the New York Proceedings.

. We therefore deny as moot the governments request for a venue transfer.