Gregorio Mendoza Cervantes v. William Barr

• Court: Court of Appeals for the Ninth Circuit
• Decided: April 30, 2019
• Docket: 16-71678
• Status: Unpublished

Opinion

FILED NOT FOR PUBLICATION APR 30 2019 UNITED STATES COURT OF APPEALS MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS

FOR THE NINTH CIRCUIT

GREGORIO MENDOZA CERVANTES; No. 16-71678 TERESA BIRRUETA VALLADARES; ANGEL GABRIEL MENDOZA Agency Nos. A202-153-716 BIRRUETA, A202-153-717 A202-153-718 Petitioners,

v. MEMORANDUM*

WILLIAM P. BARR, Attorney General,

Respondent.

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

Argued and Submitted April 10, 2019 Seattle, Washington

Before: W. FLETCHER, CALLAHAN, and CHRISTEN, Circuit Judges.

Petitioners petition for review of a Board of Immigration Appeals’ (“BIA”)

decision dismissing their appeal of an Immigration Judge’s (“IJ”) decision for lack

* This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3. of jurisdiction. Petitioners appealed the IJ’s denial of Petitioners’ motion to reopen

expedited removal proceedings. We dismiss the petition for lack of jurisdiction.

“We determine our own jurisdiction de novo.” Pena v. Lynch, 815 F.3d 452,

455 (9th Cir. 2016). Pursuant to 8 U.S.C. § 1252(a)(2)(A) and our decision in

Pena v. Lynch, 815 F.3d 452 (9th Cir. 2016), we generally lack jurisdiction to

review direct challenges to credible fear determinations in expedited removal

proceedings under 8 U.S.C. § 1225(b)(1). Petitioners fail to provide us with a

sufficient basis for statutory jurisdiction to review BIA’s dismissal for lack of

jurisdiction of an appeal of a motion to reopen. See Pena, 815 F.3d 452; Sarmadi

v. INS, 121 F.3d 1319 (9th Cir. 1997). (We do have jurisdiction to review “a

colorable constitutional claim,” see Pena, 815 F.3d at 456, but Petitioners do not

raise a colorable constitutional claim here.) Although short, the IJ’s decision

stating that “[a] full fair hearing was conducted” adequately explained the IJ’s

reasoning and addressed Petitioners’ arguments that a new hearing was needed to

allow Birrueta to testify and to allow Mendoza and Birrueta to present additional

evidence. See also Bartolome v. Sessions, 904 F.3d 803, 813–14 (9th Cir. 2018)

(noting that in “[i]n expedited proceedings (such as [the related reasonable fear

proceedings]), IJs do not have the ability nor are they required to provide detailed

decisions outlining all the claims raised by the [applicant].”). Because Petitioners

2 fail to provide us with a sufficient basis for jurisdiction, we dismiss the petition.1

In so holding, we do not address whether Petitioners can bring a habeas petition

pursuant to 8 U.S.C. § 1252(e)(2). See Thuraissigiam v. U.S. Dep’t of Homeland

Sec., 917 F.3d 1097 (9th Cir. 2019).

PETITION FOR REVIEW DISMISSED.

1 We note that the BIA fails to adequately explain why the BIA lacks jurisdiction. An appeal from an IJ’s denial of a motion to reopen differs from a direct appeal of an IJ’s negative credible fear finding.