Domingo Izaguirre v. William Barr

• Court: Court of Appeals for the Ninth Circuit
• Decided: September 11, 2020
• Docket: 19-71839
• Status: Unpublished

Opinion

NOT FOR PUBLICATION FILED UNITED STATES COURT OF APPEALS SEP 11 2020 MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS FOR THE NINTH CIRCUIT

DOMINGO MAXIMO IZAGUIRRE, No. 19-71839

Petitioner, Agency No. A070-183-442

v. MEMORANDUM* WILLIAM P. BARR, Attorney General,

Respondent.

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

Submitted September 8, 2020**

Before: TASHIMA, SILVERMAN, and OWENS, Circuit Judges.

Domingo Maximo Izaguirre, a citizen and native of Honduras, petitions for

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

reopen proceedings conducted in absentia. Our jurisdiction is governed by

8 U.S.C. § 1252. We review for abuse of discretion the denial of a motion to

reopen and review de novo questions of law. Bonilla v. Lynch, 840 F.3d 575, 581

* 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). (9th Cir. 2016). We deny in part and dismiss in part the petition for review.

The BIA did not abuse its discretion in denying Izaguirre’s unopposed

motion to reopen, where it has the authority to do so. See Limsico v. INS, 951 F.2d

210, 213 (9th Cir. 1991); cf. Konstantinova v. INS, 195 F.3d 528, 530-31 (9th Cir.

1999) (abuse of discretion where denial of unopposed motion to remand was based

on procedural error). Izaguirre has not raised, and therefore waives, any challenge

to the BIA’s determination that Pereira v. Sessions, 138 S. Ct. 2105 (2018), does

not apply in this case. See Lopez-Vasquez v. Holder, 706 F.3d 1072, 1079-80 (9th

Cir. 2013) (petitioner waives a contention by failing to raise it in the opening

brief).

We lack jurisdiction to review Izaguirre’s unexhausted contention that,

because his hearing notice was not accompanied by a certificate of service,

jurisdiction did not vest with the immigration court. Tijani v. Holder, 628 F.3d

1071, 1080 (9th Cir. 2010).

Izaguirre’s contention that the BIA did not properly address the reason for

his request for sua sponte reopening is not supported, and we otherwise lack

jurisdiction to review the BIA’s denial of sua sponte reopening. See Bonilla, 840

F.3d at 588.

2 19-71839 The temporary stay of removal remains in place until issuance of the

mandate. The motion for a stay of removal is otherwise denied.

PETITION FOR REVIEW DENIED in part; DISMISSED in part.

3 19-71839