Fidel Piedra-Alvarez v. William Barr

• Court: Court of Appeals for the Ninth Circuit
• Decided: November 23, 2020
• Docket: 18-71943
• Status: Unpublished

Opinion

NOT FOR PUBLICATION FILED UNITED STATES COURT OF APPEALS NOV 23 2020 MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS FOR THE NINTH CIRCUIT

FIDEL PIEDRA-ALVAREZ, AKA Fidel No. 18-71943 Alvarez, Agency No. A038-526-953 Petitioner,

v. MEMORANDUM*

WILLIAM P. BARR, Attorney General,

Respondent.

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

Submitted November 18, 2020** Phoenix, Arizona

Before: BYBEE, MURGUIA, and BADE, Circuit Judges.

Fidel Piedra-Alvarez, a citizen and resident of Mexico, petitions for review

of the Board of Immigration Appeals’s (“BIA”) decision affirming the denial of his

motion to reopen removal proceedings under former section 212(c) of the

Immigration and Nationality Act. Because the parties are familiar with the facts,

* 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). we do not recite them here. We have jurisdiction under 8 U.S.C. § 1252(a)(2)(D),

and we deny the petition.

The BIA properly dismissed Piedra-Alvarez’s appeal. Under INS v. St. Cyr,

relief under former section 212(c) “remains available for aliens . . . whose

convictions were obtained through plea agreements and who, notwithstanding

those convictions, would have been eligible for § 212(c) relief at the time of their

plea under the law then in effect.” 533 U.S. 289, 326 (2001). The Executive

Office for Immigration Review (“EOIR”) set a deadline of April 26, 2005 for

eligible lawful permanent residents (“LPRs”) to file special motions to reopen

pursuant to St. Cyr. Section 212(c) Relief for Aliens with Certain Criminal

Convictions Before April 1, 1997, 69 Fed. Reg. 57,826, 57,834 (Sept. 28, 2004)

(codified at 8 C.F.R. § 1003.44(h)). Piedra-Alvarez contends that although he

missed the deadline to seek relief under former section 212(c), the deadline itself is

invalid—both because the deadline is arbitrary and because the rule establishing

the deadline did not provide him constitutionally sufficient notice. Both arguments

are foreclosed by our holding in Luna v. Holder, 659 F.3d 753, 759–60 (9th Cir.

2011).

In Luna, we held that 8 C.F.R. § 1003.44(h) is “a constitutionally-sound

procedural rule.” Id. at 755. When determining whether an agency decision is

arbitrary or capricious, we examine whether the agency provided “a reasoned

2 explanation for its action,” which is “not a high bar.” Judulang v. Holder, 565

U.S. 42, 45 (2011). Because the EOIR gave an explanation for the deadline when

promulgating the rule—the need to provide both the opportunity for LPRs to apply

for relief, as required by St. Cyr, 533 U.S. at 326, and “finality” in LPRs’

immigration proceedings—the agency acted lawfully in establishing the deadline.

See Section 212(c) Relief for Aliens with Certain Criminal Convictions Before

April 1, 1997, 67 Fed. Reg. 52,627, 52,628 (Aug. 13, 2002). To the extent that the

deadline was arbitrary, all deadlines are arbitrary. See United States v. Boyle, 469

U.S. 241, 249 (1985) (“Deadlines are inherently arbitrary; fixed dates, however,

are often essential to accomplish necessary results.”).

Moreover, Piedra-Alvarez’s contention that 8 C.F.R. § 1003.44

impermissibly treats two groups of removable LPRs differently based only on

when the LPR was placed in removal proceedings does not invalidate the rule

under Judulang, 565 U.S. at 55. It is true that LPRs convicted at the same time as

Piedra-Alvarez but placed in removal proceedings after the regulatory deadline

would have a later opportunity to seek relief under former section 212(c). See 8

C.F.R. § 1212.3(e) (providing that LPRs who pled guilty to certain crimes before

April 1, 1997 can apply for relief under former section 212(c) during the pendency

of their removal proceedings). But this does not make the deadline arbitrary under

Judulang, which involved substantive requirements for relief from removal, rather

3 than a procedural requirement like a deadline. See 565 U.S. at 55, 64 (detailing the

so-called “comparable-grounds” rule for evaluating an alien’s substantive

eligibility for relief under former section 212(c)).

Finally, as we explained in Luna, publication of the deadline in the Federal

Register provided constitutionally sufficient notice of the availability of relief. 659

F.3d at 759. Piedra-Alvarez contends he is meaningfully different from the

petitioner in Luna because he has lived outside the country since his removal

in 1998, and therefore lacked the ability to discover the change in immigration law

after St. Cyr. However, Piedra-Alvarez cites no authority that would require the

federal government to give him individual notice of the change in rules. In

general, publication in the Federal Register constitutes adequate notice of the

availability of relief in the immigration context, except in cases where “imminent

government action . . . directly affects [a] party’s rights and that party’s interest in

the government action is more than ‘purely speculative.’” Williams v. Mukasey,

531 F.3d 1040, 1042 (9th Cir. 2008) (quoting Covelo Indian Cmty. v. Fed. Energy

Regul. Comm’n, 895 F.2d 581, 588 (9th Cir. 1990) (per curiam)). Here, Piedra-

Alvarez has failed to show that the government had more than “speculative

knowledge” that he was specifically entitled to relief. See id. at 1042–43. In fact,

Piedra-Alvarez was facially ineligible for relief under section 212(c) as it existed

when he pled guilty because he was removed pursuant to an aggravated felony and

4 a controlled substance violation. See Antiterrorism and Effective Death Penalty

Act of 1996, Pub. L. No. 104-132, § 440(d), 110 Stat. 1214 (1996). Therefore, the

government was not required to provide more than notice by publication in Piedra-

Alvarez’s case.

DENIED.