Derek Davis v. Matthew Whitaker

• Court: Court of Appeals for the Ninth Circuit
• Decided: November 20, 2018
• Docket: 17-72374
• Status: Unpublished

Opinion

NOT FOR PUBLICATION FILED UNITED STATES COURT OF APPEALS NOV 20 2018 MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS FOR THE NINTH CIRCUIT

DEREK DAVIS, No. 17-72374

Petitioner, Agency No. A023-078-425

v. MEMORANDUM* MATTHEW G. WHITAKER, Acting Attorney General,

Respondent.

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

Submitted October 22, 2018**

Before: SILVERMAN, GRABER, and GOULD, Circuit Judges.

Derek Davis, a native and citizen of the United Kingdom, petitions pro se for

review of the Board of Immigration Appeals’ (“BIA”) order denying his motion to

reconsider and reopen. Our jurisdiction is governed by 8 U.S.C. § 1252. We review

for abuse of discretion the denial of a motion to reconsider and to reopen, and

* 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). review de novo questions of law. Mohammed v. Gonzales, 400 F.3d 785, 791-92

(9th Cir. 2005). We deny in part and dismiss in part the petition for review.

The BIA did not abuse its discretion in denying Davis’s motion to reconsider

where the motion failed to identify any error of fact or law in the BIA’s prior order

denying as untimely his appeal from an immigration judge’s (“IJ”) denial of his

second motion to reopen. See 8 C.F.R. § 1003.2(b)(1)

The BIA did not abuse its discretion in denying Davis’s motion to reopen as

untimely where it was filed two years after the order of removal became final, see

8 U.S.C. § 1229a(c)(7)(C)(i) (motion to reopen must be filed within ninety days of

final order of removal), and Davis has not established that any statutory or

regulatory exception applies, see 8 U.S.C. § 1229a(c)(7)(C); 8 C.F.R.

§ 1003.2(c)(3).

We lack jurisdiction to review Davis’s challenges to the BIA’s May 2015

and April 2017 orders dismissing his direct appeal and finding untimely his appeal

of the IJ’s denial of his second motion to reopen, because this petition is not timely

as to either order. See 8 U.S.C. § 1252(b)(1). The BIA’s May 2015 and April 2017

orders were the subject of earlier petitions for review at this court, Davis v. Lynch,

No. 15-71984 and Davis v. Sessions, No. 17-71226.

We do not consider the extra-record documents submitted with Davis’s

filings, see Dent v. Holder, 627 F.3d 365, 371 (9th Cir. 2010) (stating standard for

2 17-72374 review of out-of-record evidence), or any challenge to Davis’s bond determination,

see 8 C.F.R. § 1003.19(d) (IJ’s consideration of an alien’s application or request

regarding custody or bond “shall be separate and apart from . . . any deportation or

removal hearing or proceeding”); Leonardo v. Crawford, 646 F.3d 1157, 1160 (9th

Cir. 2011) (clarifying the proper procedure for challenging a bond determination).

Davis’s motion to expedite is denied as moot. This matter is not consolidated

with Davis’s pending petition at Docket No. 18-15131. Therefore, we do not

consider his filings or requests submitted in connection with that matter.

Davis’s motion (Docket Entry No. 36) requesting permission to file a

substitute and oversized reply brief is granted as to the reply brief received on

October 5, 2018 (Docket Entry No. 32). We reject Davis’s additional reply brief

received on October 30, 2018 (Docket Entry No. 35).

PETITION FOR REVIEW DENIED in part; DISMISSED in part.

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