Hussain Al-Jabari v. Merrick Garland

• Court: Court of Appeals for the Ninth Circuit
• Decided: February 14, 2023
• Docket: 18-73155
• Status: Unpublished

Opinion

NOT FOR PUBLICATION FILED UNITED STATES COURT OF APPEALS FEB 14 2023 MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS FOR THE NINTH CIRCUIT

HUSSAIN JIYAD AL-JABARI, No. 18-73155

Petitioner, Agency No. A071-680-533

v. MEMORANDUM* MERRICK B. GARLAND, Attorney General,

Respondent.

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

Submitted February 10, 2023** Phoenix, Arizona

Before: GRABER, CLIFTON, and CHRISTEN, Circuit Judges.

Petitioner Hussain Jiyad Al-Jabari, a native and citizen of Iraq, timely

petitions for review of the Board of Immigration Appeals’ (“BIA”) order

dismissing his appeal from an Immigration Judge’s (“IJ”) denial of a motion to

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

* 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 to reopen for abuse of discretion and review legal questions de novo.

Bonilla v. Lynch, 840 F.3d 575, 581 (9th Cir. 2016). Where the BIA adopts the

reasoning of the IJ and adds some of its own reasoning, we review both decisions.

Nehad v. Mukasey, 535 F.3d 962, 966 (9th Cir. 2008). We deny the petition in

part and dismiss it in part.

1. The government served Petitioner with an initial notice to appear that

omitted the date and time of his hearing. Petitioner’s initial notice was later

supplemented with that missing information. Petitioner contends that the agency

lacked authority to act because the relevant regulations allowing that procedure are

ultra vires and exceed the scope of the authority granted by Congress. In the

alternative, he maintains that the IJ lacked jurisdiction. In United States v.

Bastide-Hernandez, 39 F.4th 1187 (9th Cir. 2022) (en banc), ”), cert. denied, No.

22-6281, 2023 WL 350056 (U.S. Jan. 23, 2023), we held that an undated notice to

appear that is later supplemented by a notice of hearing does not deprive the

agency of authority to act. 39 F.4th at 1193. We reached that conclusion by

relying on the statute, not the regulations. Id. at 1191–93. We also held that the

omission of the date and time of the hearing on the initial notice to appear does not

divest the IJ of subject-matter jurisdiction. 39 F.4th at 1193 & n.7. Thus, both of

Petitioner’s arguments fail.

2 2. The BIA did not abuse its discretion by concluding that Petitioner’s

motion to reopen was time-barred and number-barred. Petitioner appeals from the

denial of his second motion to reopen, which was filed more than six years after

the final administrative order of removal. In general, a petitioner may file only one

motion to reopen proceedings. 8 U.S.C. § 1229a(c)(7)(A). That motion must be

filed within ninety days of the final order of removal. 8 U.S.C.

§ 1229a(c)(7)(C)(i).

There are limited exceptions to those requirements. 8 U.S.C.

§ 1229a(c)(7)(C)(ii); 8 C.F.R. § 1003.2(c)(3). But Petitioner does not argue that

any statutory or regulatory exception applies. Instead, he maintains that his motion

was timely because it was filed within ninety days of the Supreme Court’s decision

in Pereira v. Sessions, 138 S. Ct. 2105 (2018). Equitable tolling of the statutory

deadlines and numerical limits on motions to reopen for “claims based on changes

in the law are not unheard of, nor are they prohibited.” Lona v. Barr, 958 F.3d

1225, 1230–31 (9th Cir. 2020). But here, Petitioner’s specific argument is that he

may raise a jurisdictional argument at any time. As we explained in Bastide-

Hernandez, Pereira did not implicate the agency’s authority to act or divest the IJ

of jurisdiction, so this argument misses the mark. Moreover, Petitioner failed to

demonstrate the existence of an extraordinary circumstance.

3 3. To the extent that Petitioner argues that the BIA erred by declining to

exercise its sua sponte authority to reopen, we dismiss the petition. Our

jurisdiction to review BIA decisions denying sua sponte reopening is limited to

“reviewing the reasoning behind the decisions for legal or constitutional error.”

Bonilla, 840 F.3d at 588. Because the BIA did not commit legal or constitutional

error, we lack jurisdiction. See Lona, 958 F.3d at 1235 (“[T]here is nothing left for

us to review.”).

Petition DENIED in part and DISMISSED in part.