Ismael Cazares Cobian v. William Barr

• Court: Court of Appeals for the Ninth Circuit
• Decided: September 16, 2021
• Docket: 14-70701
• Status: Unpublished

Opinion

UNITED STATES COURT OF APPEALS FILED FOR THE NINTH CIRCUIT SEP 16 2021 MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS ISMAEL CAZARES COBIAN, No. 14-70701

Petitioner, Agency No. A077-369-673

v. ORDER MERRICK B. GARLAND, Attorney General,

Respondent.

Before: GOULD, BEA, and FRIEDLAND, Circuit Judges.

The petition for panel rehearing is GRANTED. The Memorandum

Disposition filed on September 16, 2019, is WITHDRAWN and replaced with a

superseding Memorandum Disposition filed concurrently with this order. With

this superseding disposition, the petition for rehearing en banc is DENIED as

moot. Future petitions for rehearing will be permitted under the deadlines outlined

in Federal Rules of Appellate Procedure 35(c) and 40(a)(1).

IT IS SO ORDERED. NOT FOR PUBLICATION FILED UNITED STATES COURT OF APPEALS SEP 16 2021 MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS FOR THE NINTH CIRCUIT

ISMAEL CAZARES COBIAN, No. 14-70701

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

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

Submitted September 12, 2019** Submission Withdrawn November 18, 2019 Resubmitted September 16, 2021 San Francisco, California

Petitioner Ismael Cazares Cobian appeals the Board of Immigration

Appeals’ (“BIA”) decision affirming the Immigration Judge’s (“IJ”) order of

removal. We have jurisdiction under 8 U.S.C. § 1252(a). We grant his motion to

* 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). remand to the BIA for consideration of cancellation of removal. We dismiss for

lack of jurisdiction his motion to remand to the BIA for consideration of

administrative closure. And, reviewing de novo, Altamirano v. Gonzales, 427 F.3d

586, 591 (9th Cir. 2005), we deny his petition for review.

Cazares Cobian is a Mexican citizen who became a legal permanent resident

of the United States (“LPR”) on November 1, 2002. On August 7, 2008, when

Cazares Cobian was trying to cross from Mexico to the United States in his car,

authorities asked him to go to secondary inspection. There, upon questioning,

Cazares Cobian admitted to attempting to smuggle a passenger in his car into the

United States without proper documents. He contends that, during his questioning,

the immigration officer did not advise him of his rights under 8 C.F.R. § 287.3(c).

On August 8, 2008, or five years and nine months after Cazares Cobian

became an LPR, the government served him with a Notice to Appear (“NTA”) that

omitted the time, date, and place of his removal hearing. While Cazares Cobian’s

immigration proceedings were pending from 2012 to 2014, BIA caselaw stipulated

that service of an NTA which omits the time, date, and location of a noncitizen’s

removal hearing triggered the stop-time rule that pauses continuous residency in

the United States for purposes of cancellation of removal. Matter of Camarillo, 25

I. & N. Dec. 644, 651 (BIA 2011). Under this law, Cazares Cobian had not yet

accrued the seven years of continuous residency required for cancellation of

2 removal, so he did not seek such relief from the IJ or BIA.

Cazares Cobian requests remand to the BIA for consideration of cancellation

of removal. Although he did not seek such relief from the IJ or BIA,

administrative and prudential exhaustion are not required for this issue because

cancellation of removal was so entirely foreclosed to Cazares Cobian during his

immigration proceedings that resort to the agency would have been futile. See id.;

Alvarado v. Holder, 759 F.3d 1121, 1128–30 (9th Cir. 2014); Sun v. Ashcroft, 370

F.3d 932, 942–43 (9th Cir. 2004). And cancellation of removal law has changed—

an NTA must contain the time, date, and place of a noncitizen’s removal hearing to

trigger the stop-time rule. Niz-Chavez v. Garland, --- U.S. ---, 141 S. Ct. 1474,

1479–82 (2021); Pereira v. Sessions, --- U.S. ---, 138 S. Ct. 2105, 2109 (2018);

Lopez v. Garland, 998 F.3d 851, 852 (9th Cir. 2021) (en banc). As such, we grant

Cazares Cobian’s motion for remand with regard to cancellation of removal.

Also, Cazares Cobian requests remand to the BIA for consideration of

administrative closure. But he did not seek such relief from the IJ or BIA, even

though it was available during his immigration proceedings. See Garcia-DeLeon

v. Garland, 999 F.3d 986, 989 (6th Cir. 2021) (describing the availability of

administrative closure for at least three decades until 2018); Matter of Avetisyan,

25 I. & N. Dec. 688, 692 (BIA 2012), overruled by Matter of Castro-Tum, 27 I. &

N. Dec. 271, 272 (A.G. 2018), overruled by Matter of Cruz-Valdez, 28 I. & N.

3 Dec. 326 (A.G. 2021). For this reason, Cazares Cobian did not exhaust his

administrative closure claim and we lack jurisdiction to consider it. See Barron v.

Ashcroft, 358 F.3d 674, 678 (9th Cir. 2004).

Finally, Cazares Cobian petitions for review of the BIA’s decision, arguing

that the statements he made during questioning at secondary inspection should

have been suppressed because he was not advised of his rights. Cazares Cobian’s

statements during his questioning at secondary inspection were admissible in his

immigration proceedings. Because Cazares Cobian had not yet been placed in

formal immigration proceedings, the immigration officials were not required under

8 C.F.R. § 287.3(c) to inform him of his right to counsel. Samayoa-Martinez v.

Holder, 558 F.3d 897, 901–02 (9th Cir. 2009).

The admission of Cazares Cobian’s statements did not violate his Fifth

Amendment right against self-incrimination. Noncitizens are entitled to the same

protections against self-incrimination as citizens. United States v. Balsys, 524 U.S.

666, 671 (1998). However, an official’s failure to give a Miranda-style warning

does not preclude the use of statements obtained during a custodial interrogation in

a removal proceeding. See United States v. Solano-Godines, 120 F.3d 957, 960

(9th Cir. 1997).

MOTION TO REMAND WITH REGARD TO CANCELLATION OF

REMOVAL GRANTED. MOTION TO REMAND WITH REGARD TO

4 ADMINISTRATIVE CLOSURE DISMISSED. PETITION DISMISSED IN

PART AND DENIED IN PART.