Castrejon-Telles v. Bondi

• Court: Court of Appeals for the Ninth Circuit
• Decided: March 31, 2025
• Docket: 23-3851
• Status: Unpublished

Opinion

NOT FOR PUBLICATION FILED UNITED STATES COURT OF APPEALS MAR 31 2025 MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS FOR THE NINTH CIRCUIT

RIGOBERTO CASTREJON-TELLES, No. 22-1749 Agency No. Petitioner, A037-441-199 v. MEMORANDUM*

PAMELA BONDI, Attorney General,

Respondent.

RIGOBERTO CASTREJON-TELLES, No. 23-3851 Petitioner, Agency No. A037-441-199 v.

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

Submitted March 26, 2025** Pasadena, California

* 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). Before: BOGGS***, FRIEDLAND, and BRESS, Circuit Judges.

Petitioner Castrejon-Telles, a native and citizen of Mexico, petitions for

review of two orders by the Board of Immigration Appeals (“BIA”). In one order,

the BIA dismissed Castrejon-Telles’s appeal from an Immigration Judge’s (“IJ’s”)

denial of relief from removal. In a subsequent order, the BIA denied Castrejon-

Telles’s motion to reopen to apply for withholding of removal under the

Immigration and Nationality Act (“INA”) and the Convention Against Torture

(“CAT”), as well as deferral of removal under the CAT. We review de novo the

BIA’s determination of purely legal questions and review for substantial evidence

the BIA’s factual findings. Nababan v. Garland, 18 F.4th 1090, 1094 (9th Cir.

2021). We review for abuse of discretion the BIA’s denial of a motion to

reopen. Avagyan v. Holder, 646 F.3d 672, 674 (9th Cir. 2011). We have

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

1. The BIA did not err in dismissing Castrejon-Telles’s appeal from the IJ’s

denial of relief from removal. Castrejon-Telles argues that his removal

proceedings should have been terminated because the Notice to Appear (“NTA”)

that he was issued lacked a specific location, date, and time and thus did not confer

subject matter jurisdiction. Precedent forecloses that argument. United States v.

*** The Honorable Danny J. Boggs, United States Circuit Judge for the Court of Appeals, 6th Circuit, sitting by designation.

2 22-1749, 23-3851 Bastide-Hernandez, 39 F.4th 1187, 1192 (9th Cir. 2022) (en banc). Castrejon-

Telles is thus not entitled to relief on that ground because the IJ had jurisdiction to

conduct his removal proceedings, despite any deficiencies in the NTA.1

2. The BIA did not abuse its discretion in denying Castrejon-Telles’s

motion to reopen. The BIA correctly concluded that Castrejon-Telles’s motion to

reopen as to his withholding-of-removal claims under the INA and under the CAT

was time-barred because his motion was filed around February 23, 2023—over 90

days after the BIA’s final administrative order of removal, dated September 29,

2022. It is true that the 90-day time limit does not apply if the motion to reopen “is

based on changed country conditions arising in the country of nationality or the

country to which removal has been ordered, if such evidence is material and was

not available and would not have been discovered or presented at the previous

proceeding.” 8 U.S.C. § 1229a(c)(7)(C)(ii). But in this case, the BIA did not err in

concluding that any such evidence would have been immaterial because Castrejon-

Telles’s prior conviction for heroin trafficking was a “particularly serious crime”

1 On appeal, Castrejon-Telles has forfeited any challenge to the BIA’s conclusion that the IJ correctly pretermitted Castrejon-Telles’s application for waiver under former section 212(c) of the INA, 8 U.S.C. § 1182(c) because no argument about section 212(c) waiver was “clearly and distinctly” raised in the Opening Brief. See Avila v. L.A. Police Dep’t, 758 F.3d 1096, 1101 (9th Cir. 2014) (quoting McKay v. Ingleson, 558 F.3d 888, 891 n.5 (9th Cir. 2009)).

3 22-1749, 23-3851 that rendered him ineligible for withholding of removal.2

The BIA also did not err in concluding that Castrejon-Telles failed to

establish a prima facie case for deferral of removal under the CAT, or in denying

his motion to reopen on that additional basis. “[A] ‘prima facie case is established

when the evidence reveals a reasonable likelihood that the statutory requirements

for relief have been satisfied.’” Tadevosyan v. Holder, 743 F.3d 1250, 1255 (9th

Cir. 2014) (quoting Garcia v. Holder, 621 F.3d 906, 912 (9th Cir. 2010)).3 We

have explained:

To receive deferral of removal under the CAT, an applicant must establish that “it is more likely than not that he or she would be tortured if removed.” 8 C.F.R. § 1208.16(c)(2). To constitute torture, an act must inflict “severe pain or suffering,” and it must be undertaken “at the instigation of, or with the consent or acquiescence of, a public official.” 8 C.F.R. § 1208.18(a)(1).

Hernandez v. Garland, 52 F.4th 757, 768–69 (9th Cir. 2022). Here, the record

supports the BIA’s determination that Castrejon-Telles did not provide

2 On appeal, Castrejon-Telles has forfeited any challenge to the legal effect of his drug-trafficking conviction, including the BIA’s determination that he failed to establish prima facie eligibility for withholding of removal, because no argument about the implications of the drug-trafficking conviction was “clearly and distinctly” raised in the Opening Brief. See Avila, 758 F.3d at 1101 (quoting McKay, 558 F.3d at 891 n.5). 3 Castrejon-Telles’s argument that “the language used in the Board’s decision makes clear that it imposed a stricter standard” than it should have fails because there is no apparent indication that the Board applied the wrong legal standard.

4 22-1749, 23-3851 particularized evidence showing a reasonable likelihood that he would more likely

than not suffer torture undertaken at the instigation of, or with the consent or

acquiescence of, a public official. In particular, Castrejon-Telles’s evidence speaks

only to generalized corruption in Mexico, rather than any particular risk of torture

that he faced from any public official’s instigation, consent, or acquiescence.

Castrejon-Telles’s argument that the BIA violated his due process rights by

failing to fully consider the evidence submitted with his motion to reopen is

meritless. The BIA clearly considered Castrejon-Telles’s new evidence when it

explained in the last substantive paragraph of its order why it had concluded that

the evidence was insufficient.

Petitions DENIED.4

4 Castrejon-Telles’s motion to stay removal, No. 1749, Dkt. 3, is denied. The temporary stay of removal shall remain in place until the mandate issues.

5 22-1749, 23-3851