Castro-Lopez v. Garland

• Court: Court of Appeals for the Second Circuit
• Decided: April 4, 2023
• Docket: 20-2570
• Status: Unpublished

Opinion

20-2570 Castro-Lopez v. Garland BIA McCarthy, IJ A202 027 136

UNITED STATES COURT OF APPEALS FOR THE SECOND CIRCUIT

SUMMARY ORDER RULINGS BY SUMMARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT. CITATION TO A SUMMARY ORDER FILED ON OR AFTER JANUARY 1, 2007, IS PERMITTED AND IS GOVERNED BY FEDERAL RULE OF APPELLATE PROCEDURE 32.1 AND THIS COURT’S LOCAL RULE 32.1.1. WHEN CITING A SUMMARY ORDER IN A DOCUMENT FILED WITH THIS COURT, A PARTY MUST CITE EITHER THE FEDERAL APPENDIX OR AN ELECTRONIC DATABASE (WITH THE NOTATION “SUMMARY ORDER”). A PARTY CITING A SUMMARY ORDER MUST SERVE A COPY OF IT ON ANY PARTY NOT REPRESENTED BY COUNSEL.

1 At a stated term of the United States Court of Appeals 2 for the Second Circuit, held at the Thurgood Marshall 3 United States Courthouse, 40 Foley Square, in the City of 4 New York, on the 4th day of April, two thousand twenty- 5 three. 6 7 PRESENT: 8 REENA RAGGI, 9 WILLIAM J. NARDINI, 10 EUNICE C. LEE, 11 Circuit Judges. 12 _____________________________________ 13 14 SONIA LILIAN CASTRO-LOPEZ, 15 Petitioner, 16 17 v. 20-2570 18 NAC 19 20 MERRICK B. GARLAND, UNITED 21 STATES ATTORNEY GENERAL, 22 Respondent. 23 _____________________________________ 24 25 26 FOR PETITIONER: Bruno Joseph Bembi, Hempstead, 27 NY. 28 1 FOR RESPONDENT: Brian Boynton, Acting Assistant 2 Attorney General; Brianne Whelan 3 Cohen, Senior Litigation Counsel; 4 Andrea N. Gevas, Trial Attorney, 5 Office of Immigration Litigation, 6 United States Department of 7 Justice, Washington, DC. 8 9 UPON DUE CONSIDERATION of this petition for review of a

10 Board of Immigration Appeals (“BIA”) decision, it is hereby

11 ORDERED, ADJUDGED, AND DECREED that the petition for review

12 is DISMISSED in part for lack of jurisdiction and DENIED in

13 part.

14 Petitioner Sonia Lilian Castro-Lopez, a native and

15 citizen of Guatemala, seeks review of a July 28, 2020 decision

16 of the BIA affirming an August 20, 2019 decision of an

17 Immigration Judge (“IJ”) denying her motion for the IJ to

18 reissue its April 30, 2018 removal order with a current date

19 so that she could timely appeal it to the BIA. See In re

20 Sonia Lilian Castro-Lopez, No. A202 027 136 (B.I.A. July 28,

21 2020), aff’g No. A202 027 136 (Immigr. Ct. N.Y. City Aug. 20,

22 2019). We assume the parties’ familiarity with the underlying

23 facts, procedural history, and issues on appeal.

24 We have reviewed both the IJ’s and the BIA’s decisions

25 denying Castro-Lopez’s motion to reissue. See Wangchuck v.

26 Dep’t of Homeland Sec., 448 F.3d 524, 528 (2d Cir. 2006). “A

2 1 motion to reissue is treated as a motion to reopen,” which we

2 review for abuse of discretion. Ping Chen v. U.S. Att’y Gen.,

3 502 F.3d 73, 75 (2d Cir. 2007).

4 It is undisputed that Castro-Lopez’s motion to reissue

5 was untimely because she filed it in May 2019 — more than one

6 year after the IJ issued its April 2018 removal order. See

7 8 U.S.C. § 1229a(c)(7)(C)(i) (providing 90-day deadline for

8 motions to reopen); 8 C.F.R. § 1003.23(b)(1) (same); see also

9 Ping Chen, 502 F.3d at 75. It is further undisputed that

10 Castro-Lopez received proper notice of the April 2018 removal

11 order.

12 Castro-Lopez nevertheless urges that her untimely filing

13 be excused because her attorney (who continues to represent

14 her here) misplaced her case file. This argument really

15 encompasses two: (1) that the agency erred in declining to

16 exercise its sua sponte authority to reopen, and (2) that the

17 agency erred by not equitably tolling the 90-day deadline

18 based on counsel’s mistake. See Li Chen v. Garland, 43 F.4th

19 244, 247 (2d Cir. 2022) (“Apart from § 1229a, the BIA also

20 has the authority to reopen a case sua sponte.”); Iavorski v.

21 U.S. INS, 232 F.3d 124, 134–35 (2d Cir. 2000) (allowing agency

3 1 to toll time based on ineffective assistance of counsel).

2 Neither argument has merit.

3 To the extent that Castro-Lopez challenges the agency’s

4 decision not to exercise its sua sponte authority to reopen,

5 we lack jurisdiction to consider that “entirely

6 discretionary” decision. Ali v. Gonzales, 448 F.3d 515, 518

7 (2d Cir. 2006); see also Li Chen, 43 F.4th at 251–53.*

8 As for Castro-Lopez’s appeal to equity based on counsel’s

9 mistake, this court has held that the time for filing a motion

10 to reopen “may be equitably tolled to accommodate claims of

11 ineffective assistance of counsel.” Iavorski, 232 F.3d at

12 134. But Castro-Lopez explicitly states that she did not

13 allege ineffective assistance of counsel before the agency

14 and does not raise such a claim here. Castro-Lopez has not

15 identified any other cognizable basis for equitable tolling

16 of the 90-day deadline for her motion. See Yueqing Zhang v.

17 Gonzales, 426 F.3d 540, 541 n.1, 545 n.7 (2d Cir. 2005)

18 (deeming petitioner to have abandoned a claim not raised in

19 his brief).

* Whatever jurisdiction we might have to consider an agency decision based on a “misperce[ption of] the legal background,” Mahmood v. Holder, 570 F.3d 466, 469 (2d Cir. 2009), that exception does not apply on the record here.

4 1 For the foregoing reasons, the petition for review is

2 DISMISSED in part for lack of jurisdiction and DENIED in part.

3 All pending motions and applications are DENIED and stays

4 VACATED.

5 FOR THE COURT: 6 Catherine O’Hagan Wolfe, 7 Clerk of Court