Alberto De Jesus-Fernandez Gue v. Merrick Garland

• Court: Court of Appeals for the Ninth Circuit
• Decided: August 26, 2021
• Docket: 20-70737
• Status: Unpublished

Opinion

NOT FOR PUBLICATION FILED UNITED STATES COURT OF APPEALS AUG 26 2021 MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS FOR THE NINTH CIRCUIT

ALBERTO DE JESUS-FERNANDEZ No. 20-70737 GUERRA; ELSA AVILA DE GUERRA, Agency Nos. A026-786-209 Petitioners, A026-786-208

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

Respondent.

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

Submitted August 17, 2021**

Before: SILVERMAN, CHRISTEN, and LEE, Circuit Judges.

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

* 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). BIA’s 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 BIA’s 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 party’s 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.

2 20-70737 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, 138 S. Ct. 2105 (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.

3 20-70737