Barbosa-Rios v. Garland

• Court: Court of Appeals for the Tenth Circuit
• Decided: June 6, 2024
• Docket: 23-9584
• Status: Unpublished

Opinion

Appellate Case: 23-9584 Document: 010111061394 Date Filed: 06/06/2024 Page: 1 FILED United States Court of Appeals UNITED STATES COURT OF APPEALS Tenth Circuit

FOR THE TENTH CIRCUIT June 6, 2024 _________________________________ Christopher M. Wolpert Clerk of Court IVAN BARBOSA-RIOS,

Petitioner,

v. No. 23-9584 (Petition for Review) MERRICK B. GARLAND, United States Attorney General,

Respondent. _________________________________

ORDER AND JUDGMENT * _________________________________

Before TYMKOVICH, BACHARACH, and CARSON, Circuit Judges. _________________________________

The petitioner, Mr. Ivan Barbosa-Rios, petitioned us for judicial

review over a final removal order. But we dismissed the petition on the

ground that it was late. Given the dismissal, Mr. Barbosa-Rios asked the

agency to reopen its proceedings and reissue the removal order so that he

could file a new petition for judicial review. The agency declined, and Mr.

* Oral argument would not help us decide the appeal, so we have decided the appeal based on the briefing and the record. See Fed. R. App. P. 34(a)(2)(C); 10th Cir. R. 34.1(G).

This order and judgment does not constitute binding precedent except under the doctrines of law of the case, res judicata, and collateral estoppel. But the order and judgment may be cited for its persuasive value if otherwise appropriate. See Fed. R. App. P. 32.1(a); 10th Cir. R. 32.1(A). Appellate Case: 23-9584 Document: 010111061394 Date Filed: 06/06/2024 Page: 2

Barbosa-Rios petitions us for judicial review over the agency’s refusal to

reopen the proceedings. We deny this part of the petition because the

Board of Immigration Appeals had the discretion to deny reopening.

But Mr. Barbosa-Rios also challenges the final removal order. We

dismiss these challenges, concluding that we lack jurisdiction over them

because Mr. Barbosa-Rios waited too long to seek judicial review over the

removal order.

1. The agency orders removal.

Mr. Barbosa-Rios is a citizen of Mexico who entered the United

States without inspection. When charged with inadmissibility, he sought

asylum, withholding of removal, and deferral of removal. An immigration

judge sustained the charge of inadmissibility, declined to withdraw or

defer removal, and ordered removal to Mexico. The Board upheld the

immigration judge’s order.

2. Mr. Barbosa-Rios waits too long to seek judicial review.

One day before the deadline to seek judicial review,

Mr. Barbosa-Rios overnighted a petition for review of the decision. See

8 U.S.C. § 1252(b)(1) (establishing a 30-day period for filing petition for

review). But the clerk received the petition one day late. So we declined

jurisdiction.

2 Appellate Case: 23-9584 Document: 010111061394 Date Filed: 06/06/2024 Page: 3

3. The Board of Immigration Appeals denies Mr. Barbosa-Rios’s motion to reopen.

Mr. Barbosa-Rios moved to reopen the proceedings and reissue the

final removal order so that he could file a timely petition for review. He

argued that he couldn’t have foreseen the delay because he had overnighted

the petition.

The Board denied the motion to reopen, determining that

 service of the final removal order had been proper,

 a separate copy of the final removal order had gone to Mr. Barbosa-Rios, and

 the transmittal letter stated that any petition for review had to be received by the appropriate court of appeals within 30 days.

R. at 3 (internal quotation marks omitted). The Board found that

Mr. Barbosa-Rios had not shown why he waited until the day before the

deadline to send his petition to the clerk.

4. The Board acted within its discretion in denying the motion to reopen.

We review the denial of a motion to reopen for an abuse of

discretion. Infanzon v. Ashcroft, 386 F.3d 1359, 1362 (10th Cir. 2004). The

Board “abuses its discretion when its decision provides no rational

explanation, inexplicably departs from established policies, is devoid of

any reasoning, or contains only summary or conclusory statements.”

Id. (internal quotation marks omitted).

Mr. Barbosa-Rios does not 3 Appellate Case: 23-9584 Document: 010111061394 Date Filed: 06/06/2024 Page: 4

 challenge the Board’s determination that it properly served the final removal order or

 deny that he received that order.

He instead urges equitable tolling on the ground that

 he was diligent and

 he could not have foreseen the overnight service’s failure to timely deliver the petition to the clerk’s office.

But the filing deadline is “mandatory and jurisdictional” and “is not

subject to equitable tolling.” Gonzalez-Alarcon v. Macias, 884 F.3d 1266,

1271 (10th Cir. 2018). So equitable tolling is unavailable.

Mr. Barbosa-Rios also argues that the Board violated his right to due

process by denying his motion to reopen. We disagree. Because noncitizens

“do not have a constitutional right to enter or remain in the United States,

the only protections afforded [them] are the minimal procedural due

process rights for an opportunity to be heard at a meaningful time and in a

meaningful manner.” Igiebor v. Barr, 981 F.3d 1123, 1134 (10th Cir. 2020)

(internal quotation marks omitted).

Mr. Barbosa-Rios failed to use his opportunity for meaningful input,

and he hasn’t shown that due process required another chance to file a

timely petition for review. So Mr. Barbosa-Rios hasn’t shown an abuse of

discretion in the Board’s refusal to reopen the proceedings.

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5. We lack jurisdiction over Mr. Barbosa-Rios’s other arguments.

Mr. Barbosa-Rios also challenges the final removal order. But he

waited too long to petition for review of that order, so we lack jurisdiction

to consider those arguments. See Gonzalez-Alarcon v. Macias, 884 F.3d

1266, 1271 (10th Cir. 2018); see also Thongphilack v. Gonzales, 506 F.3d

1207, 1209 (10th Cir. 2007) (reviewing a motion to reopen, but not the

final removal order, when the petition for review was timely only for the

motion to reopen).

6. Disposition

We dismiss the petition for judicial review with respect to the

challenges involving the final removal order. And we deny the petition

with respect to Mr. Barbosa-Rios’s challenge to the Board’s refusal to

reopen the proceedings.

Entered for the Court

Robert E. Bacharach Circuit Judge