Armenaki Simonian v. Merrick Garland

• Court: Court of Appeals for the Ninth Circuit
• Decided: March 19, 2021
• Docket: 17-72848
• Status: Unpublished

Opinion

NOT FOR PUBLICATION FILED UNITED STATES COURT OF APPEALS MAR 19 2021 MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS FOR THE NINTH CIRCUIT

ARMENAKI SIMONIAN, No. 17-72848

Petitioner, Agency No. A070-076-796

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

Respondent.

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

Submitted March 16, 2021**

Before: GRABER, R. NELSON, and HUNSAKER, Circuit Judges.

Armenaki Simonian, a native and citizen of Georgia, petitions for review of

the Board of Immigration Appeals’ (“BIA”) order denying his motion to reopen

deportation proceedings. Our jurisdiction is governed by 8 U.S.C. § 1252. We

review for abuse of discretion the denial of a motion to reopen. Bonilla v. Lynch,

* 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). 840 F.3d 575, 581 (9th Cir. 2016). We review de novo questions of law, id., and

due process claims 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 Simonian’s motion to

reopen as untimely, where he filed the motion more than 14 years after his final

order of deportation and failed to show he qualifies for any regulatory exception to

the filing deadline. See 8 C.F.R. § 1003.2(c)(2)-(3). To the extent Simonian

contends the deadline for his untimely motion to reopen should have been

equitably tolled, we lack jurisdiction to consider the contention. See Barron v.

Ashcroft, 358 F.3d 674, 677-78 (9th Cir. 2004) (court lacks jurisdiction to review

claims not presented to the agency).

Simonian’s contention that the BIA’s decision not to reopen proceedings sua

sponte was premised on an erroneous or incomplete assessment of the applicable

law on suspension of deportation fails. Cf. 8 C.F.R. § 1240.61(a)(3) (to be eligible

petitioner must have entered the United States on or before December 31, 1990);

Ram v. INS, 243 F.3d 510, 517, 517 n.9 (9th Cir. 2001) (describing which

petitioners qualify under transitional rule exemption from the stop-time rule). In

the absence of any legal or constitutional error, we lack further jurisdiction to

review the BIA’s decision not to reopen proceedings sua sponte. See Bonilla, 840

F.3d at 588 (“[T]his court has jurisdiction to review Board decisions denying sua

2 17-72848 sponte reopening for the limited purpose of reviewing the reasoning behind the

decisions for legal or constitutional error.”).

Finally, Simonian’s contention that Pereira v. Sessions, 138 S. Ct. 2105

(2018), might have jurisdictional ramifications or otherwise affect his case also

fails. See 8 U.S.C. § 1252b(a)(2) (1988), amended by 8 U.S.C. § 1252b(a)(2)

(Supp. III 1992) (permitting notice of the time and place at which proceedings will

be held to be given “in the order to show cause or otherwise”); see also 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 [the] case”).

PETITION FOR REVIEW DENIED in part; DISMISSED in part.

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