Geovanny Espejel Hurtado v. William Barr

• Court: Court of Appeals for the Ninth Circuit
• Decided: May 21, 2020
• Docket: 17-70907
• Status: Unpublished

Opinion

FILED NOT FOR PUBLICATION MAY 21 2020 UNITED STATES COURT OF APPEALS MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS

FOR THE NINTH CIRCUIT

GEOVANNY ESPEJEL HURTADO, No. 17-70907

Petitioner, Agency No. A200-158-327

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

Respondent.

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

Submitted April 14, 2020** Pasadena, California

Before: THOMAS, Chief Judge, and FERNANDEZ and W. FLETCHER, Circuit Judges.

Petitioner Geovanny Espejel Hurtado (“Hurtado”) petitions for review of a

Board of Immigration Appeals (“BIA”) order denying his late-filed motion to

reopen. Hurtado moved to reopen his case on the basis of ineffective assistance of

* 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). counsel. He also argued that the immigration judge (“IJ”) presiding over his

proceedings abused her discretion in denying his request for a continuance. We

have jurisdiction under 8 U.S.C. § 1252. A BIA denial of a motion to reopen is

reviewed for abuse of discretion and “is only reversed if it is arbitrary, irrational, or

contrary to law.” Perez v. Mukasey, 516 F.3d 770, 773 (9th Cir. 2008) (internal

quotation marks and citation omitted).

1. The BIA did not abuse its discretion in holding that Hurtado’s motion to

reopen was untimely. Hurtado did not show that he exercised the due diligence

needed to toll the deadline, as he presented no evidence in his motion to reopen

demonstrating reasonable steps to investigate his immigration attorney’s

shortcomings or to pursue relief, and no such evidence is contained in the

administrative record. Avagyan v. Holder, 646 F.3d 672, 679 (9th Cir. 2011)

(describing factors for assessing due diligence).

Hurtado also failed to comply with any of the procedural requirements of

Matter of Lozada, 19 I. & N. Dec. 637 (BIA 1988). See Lata v. INS, 204 F.3d

1241, 1246 (9th Cir. 2000). While in practice we have been flexible in requiring

the Lozada factors, and have dispensed with them “where counsel’s ineffective

assistance was obvious and undisputed on the face of the record,” Reyes v.

2 Ashcroft, 358 F.3d 592, 597 (9th Cir. 2004), the record before us contains no

evidence of such error.

2. Hurtado alleges that the IJ abused her discretion in denying his request

for a continuance in his underlying removal proceedings. Hurtado appealed the

IJ’s decision to the BIA, which affirmed the IJ’s denial. But he did not petition the

Ninth Circuit for review from the BIA’s order. Hurtado now attempts to use the

BIA’s denial of his motion to reopen as a vehicle to re-litigate this old argument.

Absent changed circumstances that would support a motion to reopen, he was

required to raise this argument in a petition from the BIA’s decision. The thirty-

day limitation period has run on the only petition through which Hurtado could

have sought review of the IJ’s continuance denial. See 8 U.S.C. § 1252(b)(1).

3. Finally, Hurtado argues that the appointments of IJs and members of the

BIA do not satisfy the Appointments Clause of the U.S. Constitution, and that

these individuals therefore lacked jurisdiction to order and affirm his removal.

Hurtado also claims that the absence of a statutory provision permitting removal of

IJs and members of the BIA suggests they are not sufficiently subject to removal

by the President. Hurtado did not exhaust these arguments with the agency.

However, 8 U.S.C. § 1252(a)(2)(D) allows courts of appeals to hear constitutional

claims or questions of law raised in a petition for review. See also Freytag v.

3 Comm’r, 501 U.S. 868, 878–79 (1991) (noting that “Appointments Clause

objections to judicial officers” are “in the category of nonjurisdictional structural

constitutional objections,” and as such can “be considered on appeal whether or not

they were ruled upon below”).

The Appointments Clause establishes three categories of federal-agency

personnel: principal officers, inferior officers, and non-officer employees. U.S.

CONST. art. II, § 2, cl. 2; see also Silver v. U.S. Postal Serv., 951 F.2d 1033,

1036–37 (9th Cir. 1991) (discussing all three). “[T]he President must seek the

advice and consent of the Senate to appoint principal officers.” Stanley v.

Gonzales, 476 F.3d 653, 659 (9th Cir. 2007). For inferior officers, Congress can

diverge from this default and by law vest appointment in the President alone,

courts, or agency heads. Id. “Individuals who are merely employees of the United

States government do not implicate the Appointments Clause.” Silver, 951 F.2d at

1037.

IJs and members of the BIA are inferior officers whose appointments do not

offend the Constitution. They are officers rather than mere employees because

they are adjudicative officials who exercise significant authority. See Lucia v.

SEC, 138 S. Ct. 2044, 2051–55 (2018) (distinguishing officers from non-officers);

Freytag, 501 U.S. at 881–82 (same). However, they are inferior rather than

4 principal officers because they are subject to both judicial and managerial

supervision. See Edmond v. United States, 520 U.S. 651, 662–66 (1997)

(distinguishing principal officers from inferior officers). Their appointments do

not violate the Appointments Clause because IJs and BIA members are both

appointed by the Attorney General through authority granted by Congress. See 8

U.S.C. § 1101(b)(4) (requiring appointment of IJs by the Attorney General); 8

U.S.C. § 1103(g)(2) (granting the Attorney General power to “establish such

regulations” and “review . . . administrative determinations in immigration

proceedings”); 8 C.F.R. § 1003.1(a)(1) (providing that BIA “members shall be

attorneys appointed by the Attorney General to act as the Attorney General’s

delegates in the cases that come before them”).

Nor is the lack of a statutory scheme regarding the removal of BIA members

and IJs unconstitutional. “[A]s a matter of statutory interpretation, . . . absent a

‘specific provision to the contrary, the power of removal from office is incident to

the power of appointment.’” Carlucci v. Doe, 488 U.S. 93, 95 (1988) (quoting

Keim v. United States, 177 U.S. 290, 293 (1900)). Hurtado identifies no restriction

on the Attorney General’s ability to remove the IJs and BIA members that it is

empowered to appoint. Accordingly, we do not agree with Hurtado’s contention

that IJs and BIA members are not sufficiently removable.

5 The petition is DENIED.