Joe Bayana v. Merrick Garland

• Court: Court of Appeals for the Ninth Circuit
• Decided: July 28, 2021
• Docket: 19-73250
• Status: Unpublished

Opinion

NOT FOR PUBLICATION FILED UNITED STATES COURT OF APPEALS JUL 28 2021 MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS FOR THE NINTH CIRCUIT

JOE HLUPHEKA BAYANA, AKA Joe H. No. 19-73250 Bayana, Agency No. A076-633-612 Petitioner,

v. MEMORANDUM*

MERRICK B. GARLAND, Attorney General,

Respondent.

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

Argued and Submitted July 8, 2021 Seattle, Washington

Before: HAWKINS and IKUTA, Circuit Judges, and CALDWELL,** District Judge.

Petitioner Joe Hlupheka Bayana petitions for review of an order by the

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

denial of his motion to reopen removal proceedings. Having jurisdiction under 8

* This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3. ** The Honorable Karen K. Caldwell, United States District Judge for the Eastern District of Kentucky, sitting by designation. U.S.C. § 1252, we deny the petition.

The BIA did not err in affirming the IJ’s denial of Bayana’s motion to

reopen removal proceedings for failure to meet the 90-day statutory deadline.

Bayana filed the motion sixteen years after his order of removal to South Africa

became final, and he did not submit any evidence demonstrating that an exception

to the filing deadline applied. 8 U.S.C. § 1229a(c)(7)(C); 8 C.F.R. § 1003.23(b);

see Agonafer v. Sessions, 859 F.3d 1198, 1203 (9th Cir. 2017); Singh v. Holder,

658 F.3d 879, 884 (9th Cir. 2011).

To the extent that Bayana argues that this Court should direct the BIA to

exercise its sua sponte power to reopen his case, we have no jurisdiction to do so.

See Mejia-Hernandez v. Holder, 633 F.3d 818, 824 (9th Cir. 2011); Ekimian v.

I.N.S., 303 F.3d 1153, 1159 (9th Cir. 2002).

However, if the Government seeks to remove Bayana to Zimbabwe, the

Government must afford Bayana a hearing to determine whether his removal to

Zimbabwe would subject him to persecution or torture, as the Immigration and

Nationality Act and applicable regulations require. 8 U.S.C. § 1231(b)(3)(A); 8

C.F.R. §§ 1208.16(b)-(c); 28 C.F.R. § 200.1; see She v. Holder, 629 F.3d 958, 965

(9th Cir. 2010), superseded by statute on other grounds.

PETITION DENIED.