De La O-Hernandez v. Bondi

• Court: Court of Appeals for the Ninth Circuit
• Decided: April 8, 2025
• Docket: 23-3239
• Status: Unpublished

Opinion

NOT FOR PUBLICATION FILED UNITED STATES COURT OF APPEALS APR 8 2025 MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS FOR THE NINTH CIRCUIT

FIDEL DE LA O-HERNANDEZ, No. 23-3239

Petitioner, Agency No. A200-603-103 v. MEMORANDUM* PAMELA BONDI, Attorney General,

Respondent.

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

Submitted April 4, 2025** Phoenix, Arizona

Before: HAWKINS, WALLACH,*** and R. NELSON, Circuit Judges.

Fidel De La O-Hernandez, a native and citizen of Mexico, petitions for

review of a decision of the Board of Immigration Appeals (“BIA”) that denied his

timely motion to reopen and terminate proceedings (the “Motion”) to apply for

* 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 Evan J. Wallach, United States Circuit Judge for the U.S. Court of Appeals for the Federal Circuit, sitting by designation. adjustment of status under 8 U.S.C. § 1255(a).1 We review the BIA’s decision to

deny a motion to reopen for abuse of discretion, Reyes-Corado v. Garland,

76 F.4th 1256, 1259 (9th Cir. 2023), and we “defer to the BIA’s exercise of

discretion unless it acted arbitrarily, irrationally, or contrary to law,” Najmabadi v.

Holder, 597 F.3d 983, 986 (9th Cir. 2010) (citation omitted). We review “the

BIA’s determination of purely legal questions de novo and its factual findings for

substantial evidence.” Reyes-Corado, 76 F.4th at 1260 (citing Najmabadi,

597 F.3d at 986). We have jurisdiction pursuant to 8 U.S.C. § 1252. We deny the

petition for review.

1. The BIA did not abuse its discretion when it denied the Motion

because De La O-Hernandez failed to present supporting new, previously

unavailable evidence. Among other requirements, a motion to reopen “shall state

the new facts that will be proven at a hearing to be held if the motion is granted and

shall be supported by affidavits or other evidentiary material.” 8 C.F.R.

§ 1003.2(c)(1) (emphasis added); see also 8 U.S.C. § 1229a(c)(7)(B) (noting the

same). The Immigration Judge (“IJ”) previously granted the government’s Motion

to Pretermit because De La O-Hernandez failed to meet his burden under

Section 240A(b)(1) of the Immigration and Nationality Act (INA) to establish

eligibility for relief. See 8 U.S.C. 1229b(b)(1). The IJ also found that De La-O

1 Because the parties are familiar with the facts, we do not recount them here.

2 Hernandez was “statutorily ineligible for such relief pursuant to the domestic

violence criminal offense bar identified in INA § 240A(b)(l)(C) and,

correspondingly, INA § 237(a)(2)(E)(i).” The BIA affirmed the IJ’s conclusions

because De La O-Hernandez’s “conviction under Arizona Revised Statutes

§ 13-1203(A)(2) is a crime of domestic violence, which renders him statutorily

ineligible for cancellation of removal . . . .”

De La O-Hernandez insists that he presented new material evidence.

Namely, he points to his Application for Provisional Unlawful Presence Waiver

(Form I-601A) with the U.S. Citizenship and Immigration Services (“USCIS”) in

2021, filed after the IJ issued a decision in 2020. This is insufficient for a motion

to reopen.

De La O-Hernandez failed to apply for the Form I-601A for eighteen months

after his Petition for Alien Relative (Form I-130) was approved in 2019. Meaning,

he could have acquired this evidence before his hearing. Thus, the Form I-601A is

“evidence that could have been obtained at that time and that could have been

presented” before the IJ in 2020. Goel v. Gonzales, 490 F.3d 735, 738 (9th

Cir. 2007). Moreover, De La O-Hernandez fails to explain “why he could not have

secured” his Form I-601A by applying “between the time he was [approved] and

the time he first” presented his evidence to the IJ. Id.

3 Substantial evidence therefore supports the BIA’s conclusion that De La

O-Hernandez had “not presented new facts that were previously unavailable

considering his marriage occurred in 2007” and his Form I-130 “was filed and

approved in 2019,” before the IJ and BIA issued their “decisions in this matter in

2020 and 2023, respectively.” Accordingly, the BIA did not abuse its discretion by

denying the Motion after considering De La O-Hernandez’s assertion that he filed

a Form I-601A “so he [could] apply for consular processing,” as well as his

proffered evidence, including the “Form I-130 approval notice, filing receipt for

Form I-601A, evidence of fingerprints taken with USCIS, birth certificate, and

marriage certificate . . . .”

2. The BIA did not depart from Matter of Coronado Acevedo,

28 I & N Dec. 648 (A.G. 2022). The BIA concluded that De La O-Hernandez’s

reliance on Matter of Coronado Acevedo was “misplaced because that case did not

involve a motion to reopen, as in this case.” De La O-Hernandez appears to argue

that the BIA must terminate his removal proceedings because he correctly sought

termination after filing his Form I-601A, “which requires removal proceedings to

be terminated before it may be granted by USCIS.”

That argument fails. Under Matter of Coronado Acevedo the IJ and BIA

“may consider and, where appropriate, grant termination or dismissal of removal

proceedings in certain types of limited circumstances, such as . . . where

4 termination is necessary for the respondent to be eligible to seek immigration relief

before” USCIS. 28 I. & N. Dec. at 648 (emphases added). This is a grant of

discretion couched in permissive language. See INS v. Doherty, 502 U.S. 314, 322

(1992) (“The regulation with which we deal here . . . is couched solely in negative

terms; it requires that under certain circumstances a motion to reopen be denied,

but does not specify the conditions under which it shall be granted.”). In other

words, Matter of Coronado Acevedo expressly allows the IJ and BIA to use their

discretion to terminate proceedings under certain circumstances. And Petitioner

does not point to anything to suggest the BIA abused its discretion here.

We have considered De La O-Hernandez’s remaining arguments and find

them unpersuasive. For the above reasons, we deny the petition for review.

PETITION DENIED.