NOT FOR PUBLICATION FILED UNITED STATES COURT OF APPEALS DEC 10 2024 MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS FOR THE NINTH CIRCUIT
GONZALO HERIBERTO BARRERA- No. 18-70550 LANDAVERDE, 19-71514
Petitioner, Agency No. A076-376-815
v. MEMORANDUM* MERRICK B. GARLAND, Attorney General,
Respondent.
On Petition for Review of an Order of the Board of Immigration Appeals
Submitted December 6, 2024** Pasadena, California
Before: BEA, LEE, and KOH, Circuit Judges.
Petitioner Gonzalo Heriberto Barrera-Landaverde, a native and citizen of El
Salvador, was ordered removed in abstentia by an Immigration Judge (“IJ”) on
December 20, 2016. Petitioner now seeks review of two orders of the Board 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). Immigration Appeals (“BIA”) denying two successive motions he filed to reopen
his case.
Where, as here, the BIA issues its own decision and does not adopt the IJ’s
decision, the Court reviews only the BIA’s decision. Aden v. Holder, 589 F.3d
1040, 1043 (9th Cir. 2009). The BIA’s denial of a motion to reopen is reviewed for
abuse of discretion. Hernandez-Galand v. Garland, 996 F.3d 1030, 1034 (9th Cir.
2021). A decision is an abuse of discretion if it is “arbitrary, irrational, or contrary
to law.” Bonilla v. Lynch, 840 F.3d 575, 581 (9th Cir. 2016) (citation omitted).
Legal and constitutional questions, including the sufficiency of a Notice to Appear
(“NTA”), are reviewed de novo. See Hernandez-Mancilla v. Holder, 633 F.3d
1182, 1184 (9th Cir. 2011).
Except as otherwise noted, we have jurisdiction pursuant to 8 U.S.C. § 1252.
We deny the petition in case no. 19–71514. We dismiss in part for lack of
jurisdiction and deny in part the petition in case no. 18–70550.
1. An order of in abstentia removal may, as relevant here, “be rescinded
only . . . upon a motion to reopen filed within 180 days after the date of the order
of removal if the alien demonstrates that the failure to appear was because of
exceptional circumstances.” 8 U.S.C. § 1229a(b)(5)(C)(i). Petitioner filed his first
motion to reopen on August 8, 2017, approximately eight months after he was
ordered removed in abstentia on December 20, 2016, and after he was detained by
2 Immigration and Customs Enforcement (“ICE”). The IJ accordingly found his
motion was untimely because it was outside of the 180-day deadline set by the
statute. The BIA affirmed on the ground that his motion was untimely.1
Petitioner argues the BIA abused its discretion in failing to properly consider
his argument that the 180-day deadline should have been equitably tolled.
Although our review of the BIA’s decision is generally limited to the reasons the
agency has given, “the [BIA] does not have to write an exegesis on every
contention.” Najmabadi v. Holder, 597 F.3d 983, 990 (9th Cir. 2010) (quoting
Lopez v. Ashcroft, 366 F.3d 799, 807 n. 6 (9th Cir.2004)). Rather, “[w]hat is
required is merely that [the BIA] consider the issues raised, and announce its
decision in terms sufficient to enable a reviewing court to perceive that it has heard
and thought and not merely reacted.” Id. “[A] reviewing court must ‘uphold’ even
‘a decision of less than ideal clarity if the agency’s path may reasonably be
discerned.’” Garland v. Ming Dai, 593 U.S. 357, 369 (2021) (quoting Bowman
Transp., Inc. v. Arkansas-Best Freight Sys., Inc., 419 U.S. 281, 286 (1974)).
Here, the BIA did not explicitly discuss equitable tolling, but the record
suggests it adequately considered the issue. The BIA found petitioner’s motion to
1 Petitioner argues that the BIA abused its discretion in finding he had not established exceptional circumstances warranting recission of the removal order. However, this argument is irrelevant, because the BIA never reached the exceptional circumstances issue, instead relying exclusively on the untimeliness of petitioner’s motion to reopen in denying it.
3 reopen “untimely,” wrote it “consider[ed] . . . the record as a whole,” and held that
petitioner “presented insufficient evidence of circumstances that would justify a
discretionary grant of his untimely motion to reopen and the extraordinary remedy
of reopening his removal proceedings sua sponte.” Before the BIA, petitioner
advanced his equitable tolling and sua sponte reopening arguments in the same,
short section of his brief, and relied on the same evidence and arguments for both.
Therefore, implicit in the above findings by the BIA was a rejection of petitioner’s
equitable tolling argument.
Further, petitioner’s equitable tolling argument before the BIA was
extremely perfunctory. Petitioner advanced this argument in barely four sentences,
cited to just a single case—which was not factually on-point—and did not offer
any authority suggesting that equitable tolling was appropriate in petitioner’s
circumstances. Given how weak the argument was, the reasons why the BIA
rejected it “are reasonably discernible” and the BIA was not required to “use any
particular words” in doing so. Ming Dai, 593 U.S. at 369; see also Park v.
Garland, 72 F.4th 965, 977 (9th Cir. 2023) (“We do not require that the agency
engage in a lengthy discussion of every contention raised by a petitioner.” (internal
quotation marks omitted)).
Even if the BIA did not adequately consider petitioner’s equitable tolling
argument, remand to the BIA would be unnecessary, because we “have no doubt
4 that the BIA would reach the same decision if we asked it to focus more closely
on” the issue. Najmabadi, 597 F.3d at 991; see also see Gutierrez-Zavala v.
Garland, 32 F.4th 806, 810 (9th Cir. 2022) (stating that “there is an ‘exception [to
the remand requirement] based upon subjective certainty with respect to the
outcome of the agency decision upon remand” (quoting Arnold v. Morton, 529
F.2d 1101, 1105 (9th Cir. 1976))).
“A petitioner seeking equitable tolling bears the burden of establishing two
elements: (1) that he has been pursuing his rights diligently, and (2) that some
extraordinary circumstance stood in his way and prevented timely filing.” Bent v.
Garland, 115 F.4th 934, 941 (9th Cir. 2024) (citation omitted). Petitioner concedes
that he was aware of the date of his December 20, 2016 hearing, but chose not to
attend.
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NOT FOR PUBLICATION FILED UNITED STATES COURT OF APPEALS DEC 10 2024 MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS FOR THE NINTH CIRCUIT
GONZALO HERIBERTO BARRERA- No. 18-70550 LANDAVERDE, 19-71514
Petitioner, Agency No. A076-376-815
v. MEMORANDUM* MERRICK B. GARLAND, Attorney General,
Respondent.
On Petition for Review of an Order of the Board of Immigration Appeals
Submitted December 6, 2024** Pasadena, California
Before: BEA, LEE, and KOH, Circuit Judges.
Petitioner Gonzalo Heriberto Barrera-Landaverde, a native and citizen of El
Salvador, was ordered removed in abstentia by an Immigration Judge (“IJ”) on
December 20, 2016. Petitioner now seeks review of two orders of the Board 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). Immigration Appeals (“BIA”) denying two successive motions he filed to reopen
his case.
Where, as here, the BIA issues its own decision and does not adopt the IJ’s
decision, the Court reviews only the BIA’s decision. Aden v. Holder, 589 F.3d
1040, 1043 (9th Cir. 2009). The BIA’s denial of a motion to reopen is reviewed for
abuse of discretion. Hernandez-Galand v. Garland, 996 F.3d 1030, 1034 (9th Cir.
2021). A decision is an abuse of discretion if it is “arbitrary, irrational, or contrary
to law.” Bonilla v. Lynch, 840 F.3d 575, 581 (9th Cir. 2016) (citation omitted).
Legal and constitutional questions, including the sufficiency of a Notice to Appear
(“NTA”), are reviewed de novo. See Hernandez-Mancilla v. Holder, 633 F.3d
1182, 1184 (9th Cir. 2011).
Except as otherwise noted, we have jurisdiction pursuant to 8 U.S.C. § 1252.
We deny the petition in case no. 19–71514. We dismiss in part for lack of
jurisdiction and deny in part the petition in case no. 18–70550.
1. An order of in abstentia removal may, as relevant here, “be rescinded
only . . . upon a motion to reopen filed within 180 days after the date of the order
of removal if the alien demonstrates that the failure to appear was because of
exceptional circumstances.” 8 U.S.C. § 1229a(b)(5)(C)(i). Petitioner filed his first
motion to reopen on August 8, 2017, approximately eight months after he was
ordered removed in abstentia on December 20, 2016, and after he was detained by
2 Immigration and Customs Enforcement (“ICE”). The IJ accordingly found his
motion was untimely because it was outside of the 180-day deadline set by the
statute. The BIA affirmed on the ground that his motion was untimely.1
Petitioner argues the BIA abused its discretion in failing to properly consider
his argument that the 180-day deadline should have been equitably tolled.
Although our review of the BIA’s decision is generally limited to the reasons the
agency has given, “the [BIA] does not have to write an exegesis on every
contention.” Najmabadi v. Holder, 597 F.3d 983, 990 (9th Cir. 2010) (quoting
Lopez v. Ashcroft, 366 F.3d 799, 807 n. 6 (9th Cir.2004)). Rather, “[w]hat is
required is merely that [the BIA] consider the issues raised, and announce its
decision in terms sufficient to enable a reviewing court to perceive that it has heard
and thought and not merely reacted.” Id. “[A] reviewing court must ‘uphold’ even
‘a decision of less than ideal clarity if the agency’s path may reasonably be
discerned.’” Garland v. Ming Dai, 593 U.S. 357, 369 (2021) (quoting Bowman
Transp., Inc. v. Arkansas-Best Freight Sys., Inc., 419 U.S. 281, 286 (1974)).
Here, the BIA did not explicitly discuss equitable tolling, but the record
suggests it adequately considered the issue. The BIA found petitioner’s motion to
1 Petitioner argues that the BIA abused its discretion in finding he had not established exceptional circumstances warranting recission of the removal order. However, this argument is irrelevant, because the BIA never reached the exceptional circumstances issue, instead relying exclusively on the untimeliness of petitioner’s motion to reopen in denying it.
3 reopen “untimely,” wrote it “consider[ed] . . . the record as a whole,” and held that
petitioner “presented insufficient evidence of circumstances that would justify a
discretionary grant of his untimely motion to reopen and the extraordinary remedy
of reopening his removal proceedings sua sponte.” Before the BIA, petitioner
advanced his equitable tolling and sua sponte reopening arguments in the same,
short section of his brief, and relied on the same evidence and arguments for both.
Therefore, implicit in the above findings by the BIA was a rejection of petitioner’s
equitable tolling argument.
Further, petitioner’s equitable tolling argument before the BIA was
extremely perfunctory. Petitioner advanced this argument in barely four sentences,
cited to just a single case—which was not factually on-point—and did not offer
any authority suggesting that equitable tolling was appropriate in petitioner’s
circumstances. Given how weak the argument was, the reasons why the BIA
rejected it “are reasonably discernible” and the BIA was not required to “use any
particular words” in doing so. Ming Dai, 593 U.S. at 369; see also Park v.
Garland, 72 F.4th 965, 977 (9th Cir. 2023) (“We do not require that the agency
engage in a lengthy discussion of every contention raised by a petitioner.” (internal
quotation marks omitted)).
Even if the BIA did not adequately consider petitioner’s equitable tolling
argument, remand to the BIA would be unnecessary, because we “have no doubt
4 that the BIA would reach the same decision if we asked it to focus more closely
on” the issue. Najmabadi, 597 F.3d at 991; see also see Gutierrez-Zavala v.
Garland, 32 F.4th 806, 810 (9th Cir. 2022) (stating that “there is an ‘exception [to
the remand requirement] based upon subjective certainty with respect to the
outcome of the agency decision upon remand” (quoting Arnold v. Morton, 529
F.2d 1101, 1105 (9th Cir. 1976))).
“A petitioner seeking equitable tolling bears the burden of establishing two
elements: (1) that he has been pursuing his rights diligently, and (2) that some
extraordinary circumstance stood in his way and prevented timely filing.” Bent v.
Garland, 115 F.4th 934, 941 (9th Cir. 2024) (citation omitted). Petitioner concedes
that he was aware of the date of his December 20, 2016 hearing, but chose not to
attend. At the point that he failed to attend the hearing, he was on notice of the
need to file a motion to reopen. Petitioner does not argue that he was unaware of
the 180-day deadline to file a motion to reopen. And yet, petitioner failed to do so
until two months after the 180-day deadline expired and after he had been detained
by ICE.
To support his equitable tolling argument, petitioner claimed that he suffered
a “violent attack” that resulted in bruises and a black eye, and “[h]is financial
situation prevented him from seeking care and obtaining an attorney to address the
situation.” Petitioner does not explain how this assault, which occurred two weeks
5 before the December 20, 2016 hearing, prevented him from filing a motion to
reopen for approximately eight months after the hearing. Similarly, petitioner’s
inability to pay his attorney would not have prevented him from filing a motion to
reopen pro se. See Rasberry v. Garcia, 448 F.3d 1150, 1154 (9th Cir. 2006) (“[A]
pro se petitioner’s lack of legal sophistication is not, by itself, an extraordinary
circumstance warranting equitable tolling.”). Given that petitioner has not offered
any authority to support equitable tolling on facts similar to his, remand is
unnecessary.
2. Petitioner argues the BIA erred in refusing to exercise its discretionary
authority to reopen his case sua sponte. Appellate courts generally “lack
jurisdiction to review the Board’s decision not to invoke its sua sponte authority to
reopen proceedings.” Go v. Holder, 744 F.3d 604, 609–10 (9th Cir. 2014). Courts
“may only exercise jurisdiction over BIA decisions denying sua sponte reopening
‘for the limited purpose of reviewing the reasoning behind the decisions for legal
or constitutional error.’” Cui v. Garland, 13 F.4th 991, 1001 (9th Cir. 2021)
(quoting Bonilla, 840 F.3d at 588).
Here, the sole legal error that petitioner identifies that might justify
jurisdiction is the alleged deficiency in the NTA that initiated his removal
proceedings. This argument is identical to that raised in petitioner’s second motion
to reopen. Because, as explained below, this argument lacks merit, petitioner has
6 not identified any legal or constitutional error in the BIA’s refusal to reopen the
matter sua sponte, and accordingly, we lack jurisdiction to review that decision.
We dismiss this portion of the petition.
3. Petitioner subsequently filed a second motion to reopen and terminate
proceedings based upon the Supreme Court’s decision in Pereira v. Sessions, 585
U.S. 198 (2018). Petitioner argued that the NTA that initiated his removal
proceedings was defective in that it lacked a time, date and location for the
hearing, and thus jurisdiction over the removal proceedings never vested with the
immigration court. Citing the BIA’s prior decision in Matter of Bermudez-Cota, 27
I&N Dec. 441 (BIA 2018), and this court’s decision in Karingithi v. Whitaker, 913
F.3d 1158 (9th Cir. 2019), the BIA held that the defective NTA did not deprive the
immigration court of jurisdiction and denied the motion. Petitioner argues the
BIA’s decision constituted an abuse of discretion.
Petitioner’s jurisdictional argument is squarely foreclosed by this Court’s en
banc decision in United States v. Bastide-Hernandez, 39 F.4th 1187 (9th Cir.
2022). That case held that “[n]othing in the INA, . . . conditions an immigration
court’s adjudicatory authority on compliance with rules governing notices to
appear, whether statutory or regulatory.” Id. at 1191–92 (internal quotation marks
and citations omitted). Rather, the requirements surrounding the contents of an
NTA are “claim-processing rule[s] not implicating the court’s adjudicatory
7 authority.” Id. at 1191. Accordingly, any deficiency in the NTA did not undermine
the jurisdiction of the immigration court over petitioner’s removal proceedings.
Petitioner was provided with the missing information concerning the date,
time, and location of his initial hearing just five days after he received the NTA
and well before the initial hearing date, which hearing petitioner in fact attended.
The subsequent provision of the missing information likely remedied any defect in
the NTA. See Aguilar Fermin v. Barr, 958 F.3d 887, 895 (9th Cir. 2020) (holding
that “the appropriate remedy” for an NTA that does not contain the required
address information is “providing the alien and the government with the complete
notice at a later time”); Karingithi, 913 F.3d at 1162 (holding that subsequent
notice containing date and time of removal proceeding cured lack of such
information in the NTA). Further, petitioner has not shown he suffered any
prejudice from the defect in his NTA. See Kohli v. Gonzales, 473 F.3d 1061, 1066
(9th Cir. 2007). Petitioner in fact attended the initial hearing and other hearings
before the IJ for approximately three years. Accordingly, petitioner cannot show
the BIA erred in denying his motion to reopen based on the purportedly defective
NTA.
PETITION IN CASE NO. 19–71514 DENIED. PETITION IN CASE
NO. 18–70550 DISMISSED IN PART AND DENIED IN PART.