Acosta-Ochoa v. Garland

• Court: Court of Appeals for the Ninth Circuit
• Decided: June 13, 2024
• Docket: 22-1464
• Status: Unpublished

Opinion

FILED NOT FOR PUBLICATION JUN 13 2024 UNITED STATES COURT OF APPEALS MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS

FOR THE NINTH CIRCUIT

HECTOR ACOSTA-OCHOA, No. 22-1464

Petitioner, Agency No. A095-795-786

v. MEMORANDUM* MERRICK B. GARLAND, Attorney General,

Respondent.

On Petition for Review of an Order of the Board of Immigration Appeals

Submitted June 11, 2024** Pasadena, California

Before: TASHIMA, CHRISTEN, and VANDYKE, Circuit Judges.

Hector Acosta-Ochoa seeks review of a Board of Immigration Appeals

(“BIA”) decision denying his motion to reopen proceedings. We have jurisdiction

under 8 U.S.C. § 1252, and we deny the petition.

* This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3. ** The panel unanimously concludes this case is suitable for decision without oral argument. See Fed. R. App. P. 34(a)(2). In reviewing denials of motions to reopen, this court applies the deferential

abuse of discretion standard. INS v. Abudu, 485 U.S. 94, 107 (1988). Motions to

reopen are “disfavored in deportation proceedings” because “[t]here is a strong

public interest in bringing litigation to a close … promptly.” Id. This means that a

court will only reverse the BIA’s denial of a motion to reopen proceedings if the

denial was “arbitrary, irrational, or contrary to law.” Singh v. INS, 295 F.3d 1037,

1039 (9th Cir. 2002) (citation omitted).

Seven years after the BIA issued its final removal order, Petitioner moved to

reopen removal proceedings claiming that there were defects in the contents of the

initial notice to appear (“NTA”) that he was issued. The BIA concluded that

Petitioner’s removal proceedings should not be reopened because his motion was

untimely. Under 8 C.F.R. § 1003.2(c)(2) “a party may file only one motion to reopen

deportation or exclusion proceedings … and that motion must be filed no later than

90 days after the date on which the final administrative decision was rendered.”

Petitioner filed his motion well after that deadline.

Petitioner’s only argument as to why his motion was timely is that this was

his first opportunity to make this argument after learning about new law relating to

the contents of NTAs. But this argument does not implicate any recognized

exception to the timeliness bar for motions to reopen. Thus, the agency did not abuse

its discretion in denying the motion.

2 Even if Petitioner’s motion to reopen itself was not untimely, he waited too

long to raise the issue of the adequacy of his NTA before the agency. See Matter of

Nchifor, 28 I. & N. Dec. 585, 588–89 (BIA 2022); Matter of Fernandes, 28 I. & N.

Dec. 605, 610–11 (BIA 2022). The BIA therefore correctly found that this claim

was forfeited. The requirement that an NTA contain particular pieces of information

is a claims-processing rule. It is a well-established requirement, long recognized by

the Supreme Court, the Ninth Circuit, and the BIA, that a person cannot sit on his

rights and raise objections to claims-processing rule violations at any time. See

Henderson ex rel. Henderson v. Shinseki, 562 U.S. 428, 435 (2011), United States

v. Bastide-Hernandez, 39 F.4th 1187, 1190–91 (9th Cir. 2022) (en banc); Matter of

Fernandes, 28 I. & N. Dec. at 610–11.

That is what Petitioner did here. Although he had ample opportunity to raise

any issue with the contents of his NTA during the pendency of his removal

proceedings before the agency, he never did, instead waiting until after both the

agency and this court had completed review of his removal objections to raise his

objections in a motion to reopen.

PETITION DENIED.