Cerrato-Maradiaga v. Garland

• Court: Court of Appeals for the Ninth Circuit
• Decided: February 22, 2023
• Docket: 21-534
• Status: Unpublished

Opinion

Case: 21-534, 02/22/2023, DktEntry: 43.1, Page 1 of 4

NOT FOR PUBLICATION FILED UNITED STATES COURT OF APPEALS FEB 22 2023 MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS FOR THE NINTH CIRCUIT

Alex Cerrato-Maradiaga, Nos. 21-453 21-534 Petitioner, Agency No. A029-154-257 v.

Merrick B. Garland, U.S. Attorney MEMORANDUM* General,

Respondent.

On Petition for Review of Orders of an Immigration Judge

Submitted February 16, 2023** San Francisco, California

Before: S.R. THOMAS, MILLER, and SANCHEZ, Circuit Judges.

Alex Cerrato-Maradiaga, a native and citizen of Honduras, petitions for

review of an immigration judge’s orders denying Cerrato’s motions to reissue a

decision affirming an asylum officer’s determination that Cerrato did not have a

reasonable fear of persecution or torture in Honduras. We have jurisdiction

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

* 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). Case: 21-534, 02/22/2023, DktEntry: 43.1, Page 2 of 4

“A motion to reissue is treated as a motion to reopen.” Coyt v. Holder,

593 F.3d 902, 904 n.1 (9th Cir. 2010) (quoting Chen v. United States Att’y Gen.,

502 F.3d 73, 75 (2d Cir. 2007) (per curiam)). We review the denial of a motion

to reopen for abuse of discretion and uphold the immigration judge’s decision

unless it is “arbitrary, irrational, or contrary to law.” Perez v. Mukasey, 516 F.3d

770, 773 (9th Cir. 2008) (quoting Singh v. INS, 295 F.3d 1037, 1039 (9th Cir.

2002)).

1. In his brief, Cerrato does not contest any aspect of the immigration

judge’s first decision. He has therefore abandoned any challenge to the denial of

his first motion to reissue. See Nguyen v. Barr, 983 F.3d 1099, 1102 (9th Cir.

2020).

2. Cerrato sought equitable exceptions to the time and number limits that

would otherwise bar his second motion. See 8 U.S.C. § 1229a(c)(7)(A), (C); 8

C.F.R. § 1003.23(b)(1). The immigration judge denied equitable tolling for two

reasons. First, the judge saw no authority for granting equitable tolling on

account of Cerrato’s alleged incompetency. Second, the judge observed that

Cerrato’s lawyer could have described Cerrato’s incompetency in his first

timely motion. Cerrato challenges the first reason but not the second. Because

either reason was an independent basis for the decision, Cerrato’s failure to

preserve any challenge to the second ground forecloses his claim. See Nguyen,

983 F.3d at 1102.

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In any event, the record does not suggest that the vital information

bearing on reissuance—Cerrato’s alleged incompetency during the period for

filing a petition—was unavailable to Cerrato’s lawyer despite due diligence or

because of circumstances beyond counsel’s control. See Perez-Camacho v.

Garland, 54 F.4th 597, 606 (9th Cir. 2022). The immigration judge did not

abuse his discretion in concluding that “counsel’s failure to investigate the

claimed primary reason for Respondent’s untimely petition” warranted denying

equitable tolling.

3. Cerrato asserts that the immigration judge violated his due process

rights by overlooking his arguments. To satisfy due process, the immigration

judge need not write a lengthy analysis of every contention but must “consider

the issues raised, and announce [the] decision in terms sufficient to enable a

reviewing court to perceive that [the judge] has heard and thought and not

merely reacted.” Najmabadi v. Holder, 597 F.3d 983, 990 (9th Cir. 2010)

(quoting Lopez v. Ashcroft, 366 F.3d 799, 807 n.6 (9th Cir. 2004)). The

immigration judge’s reasoning satisfied that requirement.

First, Cerrato argues that the immigration judge ignored his requests for a

finding of incompetency or a competency hearing. To the contrary, the

immigration judge grappled with Cerrato’s claim of incompetency at some

length. The judge acknowledged that, standing alone, Cerrato’s evidence might

have been persuasive but determined that the government’s evidence refuted it.

Although the judge did not expressly discuss Cerrato’s request for a hearing, his

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reasoning shows that he considered a hearing unnecessary given the evidence

against incompetency.

Second, Cerrato argues that the immigration judge ignored his declaration

that he was denied medical treatment and was wrongly accused of malingering.

That is incorrect. The immigration judge expressly referenced the declaration

and Cerrato’s statement that “he did not receive treatment” while in

immigration custody. The judge sufficiently explained why he discounted the

declaration: He found more persuasive the medical records showing that Cerrato

received medical attention and did not exhibit signs of psychosis.

Third, Cerrato objects to the immigration judge’s observation that Cerrato

neglected to submit his untimely petition, which could have supported his

claim. Cerrato contends that he did not prepare his petition by himself, so the

petition could not have demonstrated his incompetency. But his declaration says

only that he received “help filing the appeal.” It does not indicate whether

Cerrato played a role in its drafting. The immigration judge’s observation did

not misconstrue the record or violate due process.

The motions to stay removal are denied. (Case No. 21-453, Dkt. No. 4;

Case No. 21-543, Dkt. No. 2). The temporary stay of removal is lifted.

PETITIONS DENIED.

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