Jose Cruz Pleitez v. William Barr

• Court: Court of Appeals for the Ninth Circuit
• Decided: September 18, 2019
• Docket: 15-72876
• Status: Unpublished

Opinion

NOT FOR PUBLICATION

UNITED STATES COURT OF APPEALS FILED FOR THE NINTH CIRCUIT SEP 18 2019 JOSE CRISTOBAL CRUZ PLEITEZ, No. 15-72876 MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS

Petitioner, Agency No. A074-803-846

v. MEMORANDUM* WILLIAM P. BARR, Attorney General,

Respondent.

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

Submitted August 14, 2019** Pasadena, California

Before: SCHROEDER and GRABER, Circuit Judges, and M. WATSON,*** District Judge.

Petitioner Jose Cristobal Cruz Pleitez, a native and citizen of El Salvador,

seeks review of the Board of Immigration Appeals ("BIA") decision denying his

2014 motion to reopen and to rescind an in absentia deportation order. In this

* This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3. ** The panel unanimously concludes that this case is suitable for decision without oral argument. Fed. R. App. P. 34(a)(2). *** The Honorable Michael H. Watson, United States District Judge for the Southern District of Ohio, sitting by designation. disposition, we consider Petitioner’s claims that (1) he did not receive proper

notice of the hearing, both because he never received the Order to Show Cause and

Notice of Hearing and because it did not contain the appropriate information; (2)

the method of notice violated Petitioner’s rights under the Fifth Amendment’s

Equal Protection Clause; and (3) the motion to reopen was improperly denied. We

deny the petition.1

When "the BIA conducts its own review of the evidence and law, rather than

adopting the IJ’s decision, our review is limited to the BIA’s decision, except to the

extent the IJ’s opinion is expressly adopted." Zumel v. Lynch, 803 F.3d 463, 471

(9th Cir. 2015) (quoting Rodriguez v. Holder, 683 F.3d 1164, 1169 (9th Cir.

2012)).

We review the denial of a motion to reopen for abuse of discretion. Bonilla

v. Lynch, 840 F.3d 575, 581 (9th Cir. 2016). "We review de novo the BIA’s

determination of questions of law, except to the extent that deference is owed to its

interpretation of the governing statutes and regulations." Lezama-Garcia v.

Holder, 666 F.3d 518, 524 (9th Cir. 2011) (internal quotation marks omitted)).

1. The notice is included in the record. It clearly shows Petitioner’s

signature and all of the necessary information. See former 8 U.S.C. § 1252b(a)(2);

1 We resolve Petitioner’s other claims in an opinion filed this date. 2 Flores-Chavez v. Ashcroft, 362 F.3d 1150, 1155–56 (9th Cir. 2004) (listing the

requirements for adequate notice). Petitioner had the opportunity to provide

additional evidence that the notice was inadequate in some way, but he did not do

so. Therefore, Petitioner received adequate notice of the hearing and is not eligible

for relief under 8 U.S.C. § 1252b(c)(3)(B).

2. We review equal protection challenges to federal immigration laws

involving non-citizens under the rational basis standard and uphold them if they

are "rationally related to a legitimate government purpose." Hernandez-Mancilla

v. Holder, 633 F.3d 1182, 1185 (9th Cir. 2011) (quoting Masnauskas v. Gonzales,

432 F.3d 1067, 1071 (9th Cir. 2005)); see also Dent v. Sessions, 900 F.3d 1075,

1081 (9th Cir. 2018) (distinguishing between issues involving citizenship and

issues involving the admission of non-citizens), cert. denied, 139 S. Ct. 1472

(2019). "Using such rational-basis review, a statute is presumed constitutional, and

‘the burden is on the one attacking the legislative arrangement to negative every

conceivable basis which might support it.’" Masnauskas, 432 F.3d at 1071

(quoting Heller v. Doe, 509 U.S. 312, 320 (1993)).

Here, the government offers rational reasons for distinguishing between

notice requirements for detained juveniles who are released to a responsible adult

and notice requirements for juveniles who were never detained. In the latter

3 situation, there may be no responsible adult and, even if there were, it would be

burdensome to locate one. Therefore, we hold that the separate notice

requirements do not violate the Fifth Amendment’s Equal Protection Clause.

3. Petitioner filed the untimely motion to reopen more than 17 years after

his hearing, and he fails to meet any of the exceptions to the timeliness rule. See 8

C.F.R. § 1003.23(b). Additionally, Petitioner did not provide evidence of changed

country conditions. See id. § 1003.23(b)(4)(i). In re M-S-, 22 I. & N. Dec. 349,

350–51 (B.I.A. 1998) (en banc), on which Petitioner relies, is distinguishable

because that petitioner’s motion to reopen was filed only six weeks after the

deportation hearing and was timely.

Because Petitioner does not allege legal or constitutional error in the BIA’s

decision denying sua sponte reopening, we lack jurisdiction to consider the

agency’s denial. Menendez-Gonzalez v. Barr, 929 F.3d 1113, 1115 (9th Cir.

2019).

4. To the extent that Petitioner raises additional arguments, we are not

persuaded.

Petition DENIED in part and DISMISSED in part.