Gomez-Ortuno v. Bondi

• Court: Court of Appeals for the Ninth Circuit
• Decided: February 7, 2025
• Docket: 22-2031
• Status: Unpublished

Opinion

NOT FOR PUBLICATION FILED UNITED STATES COURT OF APPEALS FEB 7 2025 MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS FOR THE NINTH CIRCUIT

YARELY GOMEZ-ORTUNO; ALEXIS No. 22-2031 JAIMES-GOMEZ; EULICES JAIMES- Agency Nos. GOMEZ, A208-604-427 A208-604-429 Petitioners, A208-604-428 v. MEMORANDUM* PAMELA BONDI, Attorney General,

Respondent.

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

Submitted February 3, 2025** Pasadena, California

Before: MILLER, LEE, and DESAI, Circuit Judges.

Yarely Gomez-Ortuno and her two minor children (collectively, “petitioners”)

petition for review of a Board of Immigration Appeals (“BIA”) decision denying

their untimely and number-barred second motion to reopen. The BIA denied their

* 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). motion because petitioners forfeited their objection to the defective Notice to Appear

(“NTA”) by raising it for the first time in a motion to reopen and because petitioners

were not prejudiced by the missing NTA information and thus suffered no due

process violation.

We have jurisdiction under 8 U.S.C. § 1252. We review the BIA’s denial of a

motion to reopen for abuse of discretion. Perez-Camacho v. Garland, 54 F.4th 597,

603 (9th Cir. 2022). The BIA abuses its discretion when it “acts arbitrarily,

irrationally, or contrary to the law, and when it fails to provide a reasoned

explanation for its actions.” Tadevosyan v. Holder, 743 F.3d 1250, 1252–53 (9th Cir.

2014) (cleaned up). We deny the petition.

1. The BIA did not abuse its discretion in denying the motion to reopen

because petitioners forfeited their objections to the defective NTAs. Defects in an

NTA, including missing date and location information, are claim-processing errors

that “may be forfeited if the party asserting the rule waits too long to raise the point.”

United States v. Bastide-Hernandez, 39 F.4th 1187, 1191, 1193 (9th Cir. 2022)

(citation omitted). A petitioner who raises such NTA defects for the first time in a

motion to reopen has “waited too long” and “forfeited [her] objection to this missing

information.” Matter of Nchifor, 28 I. & N. Dec. 585, 589 (BIA 2022).

Petitioners argue that changes in law, including Pereira v. Sessions, 585 U.S.

198 (2018), which granted them a potential avenue for relief, were issued after their

2 22-2031 2017 immigration judge (“IJ”) proceedings. While petitioners may have been

foreclosed from objecting to the NTA defects in 2017,1 petitioners could have raised

the objection when Pereira issued in June 2018, during the pendency of their initial

BIA proceedings and before the BIA issued its final decision. Petitioners did not do

so. Instead, petitioners raised the NTA defects for the first time in their untimely

motion to reopen in 2021—three years after Pereira and three years after the BIA’s

dismissal of their appeal. Thus, the BIA did not abuse its discretion in finding that

petitioners forfeited their objections to the NTA defects. See Perez-Camacho, 54

F.4th at 603.

2. The NTA defects did not violate petitioners’ due process rights. To

prevail on a due process claim, a petitioner must demonstrate that (1) “the

proceeding was so fundamentally unfair that [she] was prevented from reasonably

presenting [her] case,” and (2) she suffered prejudice such that “the outcome of the

proceeding may have been affected by the alleged violation.” Zetino v. Holder, 622

F.3d 1007, 1013 (9th Cir. 2010) (citation omitted).

Petitioners argue that the Department of Homeland Security’s failure to issue

1 In Popa v. Holder, this court held that an NTA “that fails to include the date and time of [a petitioner’s] deportation hearing, but that states that a date and time will be set later, is not defective so long as a notice of the hearing is in fact later sent to the [petitioner].” 571 F.3d 890, 896 (9th Cir. 2009), overruled by Lopez v. Barr, 925 F.3d 396 (9th Cir. 2019). At the time of petitioners’ IJ proceedings in 2017, Popa was controlling and thus potentially foreclosed petitioners’ objections to their defective NTAs.

3 22-2031 a proper NTA in a single document violated their due process rights and “tainted

their prior removal orders.”2 Although the initial NTAs failed to include the hearing

time and place, petitioners received subsequent notices that contained this

information, they attended all of their hearings with counsel, and the IJ never entered

an in absentia removal order against them. Thus, petitioners fail to demonstrate that

the defective NTAs potentially affected the outcome of their proceedings and cannot

establish a due process violation. See Zetino, 622 F.3d at 1013.

3. We lack jurisdiction to review the BIA’s denial of sua sponte reopening

because the BIA made no legal or constitutional errors. See Bonilla v. Lynch, 840

F.3d 575, 588 (9th Cir. 2016) (holding that this court generally lacks jurisdiction to

review the BIA’s denial of sua sponte reopening except “for the limited purpose of

reviewing the reasoning behind the decision[] for legal or constitutional error”).

The petition is DENIED in part and DISMISSED in part.

2 Petitioners also attempt to re-litigate the jurisdictional issue, but Bastide- Hernandez unequivocally holds that NTA defects are not jurisdictional. 39 F.4th at 1191, 1193.

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