Ismael Cordova-Vera v. Merrick Garland

• Court: Court of Appeals for the Ninth Circuit
• Decided: May 13, 2021
• Docket: 18-70395
• Status: Unpublished

Opinion

NOT FOR PUBLICATION FILED UNITED STATES COURT OF APPEALS MAY 13 2021 MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS FOR THE NINTH CIRCUIT

ISMAEL CORDOVA-VERA, AKA Ismael No. 18-70395 Cordova, Agency No. A078-022-295 Petitioner,

v. MEMORANDUM*

MERRICK B. GARLAND, Attorney General,

Respondent.

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

Submitted May 11, 2021** Pasadena, California

Before: BYBEE and BRESS, Circuit Judges, and CARDONE,*** District Judge.

Ismael Cordova-Vera, a citizen of Mexico, seeks review of a Board of

Immigration Appeals (BIA) decision dismissing his appeal of an Immigration Judge

* 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). *** The Honorable Kathleen Cardone, United States District Judge for the Western District of Texas, sitting by designation. (IJ) ruling denying Cordova’s motion to reopen immigration proceedings on his

2003 removal order. We review for abuse of discretion and will reverse only if the

BIA’s decision was arbitrary, irrational, or contrary to law. Agonafer v. Sessions,

859 F.3d 1198, 1203 (9th Cir. 2017). We have jurisdiction under 8 U.S.C. § 1252,

and we deny the petition in part and dismiss in part.

1. Cordova’s motion to reopen was untimely. See 8 C.F.R.

§ 1003.23(b)(1). Agreeing with the IJ, the BIA concluded that Cordova’s motion

was untimely by fourteen years, Cordova had a full and fair opportunity to contest

his removability in 2003, and Cordova had instead conceded removability and

waived appeal. These findings constitute an implicit rejection of equitable tolling.

See Lona v. Barr, 958 F.3d 1225, 1231 (9th Cir. 2020) (holding that the BIA

“implicitly rejected” equitable tolling where it found that the motion was untimely

by more than two years and that petitioner “had a full and fair opportunity” to contest

her removability “but failed to do so”).

2. Even if Cordova’s motion to reopen were timely, the BIA identified

alternative, sufficient bases for denying reopening. Cordova failed to accompany

his motion to reopen with an application for relief, as required by 8 C.F.R.

§ 1003.23(b)(3). The BIA did not abuse its discretion in invoking this as a basis for

denying reopening. See Romero-Ruiz v. Mukasey, 538 F.3d 1057, 1064 (9th Cir.

2008) (affirming denial of motion to reopen because, inter alia, the motion “was not

2 accompanied by an application for cancellation of removal”).

Moreover, Cordova had conceded removability under 8 U.S.C.

§ 1227(a)(1)(B), and, without his application, the BIA found it could not assess

Cordova’s prima facie eligibility for relief. That determination was not an abuse of

discretion either. See Lopez-Vasquez v. Holder, 706 F.3d 1072, 1080 (9th Cir. 2013)

(“The BIA is entitled to deny a motion to reopen where the applicant fails to

demonstrate prima facie eligibility for the underlying relief.”). Cordova’s vague

claim that he provided a “detailed analysis” and “documentary evidence” is

insufficient.

3. In addition, the BIA determined Cordova failed to show he warranted

a favorable exercise of discretion for cancellation of removal or adjustment of status,

see Ridore v. Holder, 696 F.3d 907, 920 (9th Cir. 2012); Bazua-Cota v. Gonzales,

466 F.3d 747, 748 (9th Cir. 2006) (per curiam), the underlying relief Cordova would

seek in reopened proceedings. That is another separate ground that supports the

denial of Cordova’s motion to reopen. Cordova argues it was legal error for the BIA

to consider his convictions without assessing their immigration consequences. But

the BIA in exercising its discretion may consider the record as a whole, which

includes “the existence of a criminal record” and “its nature, recency, and

seriousness.” See Ridore, 696 F.3d at 920 n.5. Thus, the BIA did not err in

considering Cordova’s criminal record in concluding he would not be entitled to

3 relief and that reopening was thus not warranted.

4. In the absence of any legal error, we lack jurisdiction to review the

BIA’s exercise of discretion in denying sua sponte reopening. Go v. Holder, 744

F.3d 604, 609–10 (9th Cir. 2014). We dismiss this portion of Cordova’s appeal.

PETITION DENIED IN PART AND DISMISSED IN PART.