Daniel Quintero Diaz v. Merrick Garland

• Court: Court of Appeals for the Ninth Circuit
• Decided: July 15, 2022
• Docket: 18-72468
• Status: Unpublished

Opinion

NOT FOR PUBLICATION FILED UNITED STATES COURT OF APPEALS JUL 15 2022 MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS FOR THE NINTH CIRCUIT

DANIEL QUINTERO DIAZ; YESENIA No. 18-72468 QUINTERO FIGUEROA, Agency Nos. A070-195-570 Petitioners, A070-195-571

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

Respondent.

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

Submitted July 13, 2022** Pasadena, California

Before: BENNETT and SANCHEZ, Circuit Judges, and FOOTE,*** District Judge.

Daniel Quintero Diaz and Yesenia Quintero Figueroa (the “Quinteros” or

* 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). *** The Honorable Elizabeth E. Foote, United States District Judge for the Western District of Louisiana, sitting by designation. “Petitioners”) petition for review of a Board of Immigration Appeals (“Board”)

decision, specifically its denial of their second motion to reopen immigration

proceedings.

On June 8, 2004, an immigration judge found the Quinteros inadmissible

and granted them voluntary departure or, in the alternative, ordered them removed

(the “2004 Order”). On appeal, the Board affirmed, closing their proceedings. The

Quinteros never left the United States and twice moved to reopen their

proceedings. They first moved to reopen on April 25, 2007, and the Board denied

the motion.1 They next moved to reopen more than a decade later, on March 12,

2018.2 The Board denied this motion as well, reasoning that the second motion

was number- and time-barred, and that no exception applied to permit reopening

under 8 C.F.R. § 1003.2(c). The Board then declined to exercise its sua sponte

authority to reopen. The Quinteros now petition for judicial review of the Board’s

denial of their second motion to reopen. We have jurisdiction under 8 U.S.C.

§ 1252, see Bonilla v. Lynch, 840 F.3d 575, 581, 588 (9th Cir. 2016), and we deny

the petition.

1 While this motion was styled as a “MOTION TO REINSTATE,” the Board construes a motion according to its underlying purpose. See Mohammed v. Gonzales, 400 F.3d 785, 792–93 (9th Cir. 2005). All parties now agree this April 25, 2007 motion was a motion to reopen. 2 Petitioners at times state conflicting dates for these decisions. These inconsistencies do not alter the outcome of this disposition.

2 I.

A party may file only one motion to reopen deportation proceedings and it

must do so within 90 days of the final administrative decision unless an exception

applies. Bonilla, 840 F.3d at 582; 8 C.F.R. § 1003.2(c); see also 8 U.S.C.

§ 1229a(c)(7)(A), (C)(i). As noted, the motion below was not Petitioners’ first

motion to reopen and was filed more than 90 days after the final administrative

decision in their proceedings, as Petitioners concede. Further, the Quinteros did

not argue before the Board that an exception applies.3 As a result, we conclude the

Board’s decision to deny the petition on these grounds was not “arbitrary,

irrational, or contrary to law.” Avagyan v. Holder, 646 F.3d 672, 678 (9th Cir.

2011) (quotation omitted).

II.

A party’s motion to reopen, even if number- or time-barred under the

regulation, may nonetheless be granted by the Board under its sua sponte authority.

Menendez-Gonzalez v. Barr, 929 F.3d 1113, 1116–17 (9th Cir. 2019). “In order

for an individual to obtain sua sponte relief under 8 C.F.R. § 1003.2(a), the Board

must be persuaded that the respondent’s situation is truly exceptional.” Lona v.

3 On reply, the Quinteros newly assert that the 90-day time to file a motion to reopen should have been equitably tolled. The argument is doubly barred as waived, see Alcaraz v. INS, 384 F.3d 1150, 1161 (9th Cir. 2004), and not exhausted, see Alvarado v. Holder, 759 F.3d 1121, 1127 n.5 (9th Cir. 2014).

3 Barr, 958 F.3d 1225, 1230 (9th Cir. 2020) (quotation omitted). “Importantly,

however, the Board is not required—by regulation or its own decisions—to reopen

proceedings” even in exceptional cases. Id. (quotation omitted). We have limited

jurisdiction to review such denials. Bonilla, 840 F.3d at 588. We may only assert

jurisdiction to “assure that the Board made its discretionary decision on the correct

understanding of the applicable legal principles.” Id. at 584. Accordingly, we

briefly describe the motion and the Board’s rationale before deciding whether it

turns upon any misapprehension of law that admits review. See id. at 588, 592;

Lona, 958 F.3d at 1235.

The Quinteros argue that if their deportation proceedings were reopened,

they would not be barred from immigration relief because the 10-year bar to relief

triggered by their failure to depart under the 2004 Order has lapsed. Further, they

contend they are entitled to an adjustment of status and relief from removal

because their U.S. relative has since filed I-130 Petitions for Alien Relative,

reportedly approved on March 14, 2012. Finally, they argue they would face a

variety of hardships if forced to relocate to Mexico because they must either bring

their U.S.-citizen children (all but one having reached adulthood) or leave them

with U.S.-citizen relatives.

The Board’s rationale for declining to exercise its sua sponte authority is

twofold. First, even if the second motion to reopen were not number- or time-

4 barred, it is not the type of motion the Board would grant. The Board stated that a

motion to reopen for an adjustment of status “is generally not a circumstance

warranting the grant of an untimely motion to reopen,” and that such a motion

should have been accompanied by the appropriate application for relief and

supporting documentation. See 8 C.F.R. § 1003.2(c)(1). Second, without

elaboration, the Board found no “exceptional circumstances” otherwise warranting

sua sponte relief.

We see no clear mistake in law underlying either of the Board’s rationales

for declining to exercise its sua sponte authority to reopen. In particular, the

Board’s reasoning does not contradict Singh v. Holder, 771 F.3d 647 (9th Cir.

2014). Singh clarified that the Board has the authority to reopen proceedings for

the purpose of enabling an adjustment of status but did not hold that the Board

must reopen proceedings. Id. at 652–53. Seeing no obvious mistake in law

underlying the Board’s reasons for exercising its discretion, “there is nothing left

for us to review.” Lona, 958 F.3d at 1235.

PETITION DENIED.