Jose Tallara, Jr. v. Merrick Garland

• Court: Court of Appeals for the Ninth Circuit
• Decided: December 31, 2024
• Docket: 20-70424
• Status: Unpublished

Opinion

NOT FOR PUBLICATION FILED UNITED STATES COURT OF APPEALS DEC 31 2024 MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS FOR THE NINTH CIRCUIT

JOSE SALONGA TALLARA, JR., No. 20-70424 Agency No. A096-616-105 Petitioner,

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

Respondent.

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

Submitted December 4, 2024** San Francisco, California

Before: COLLINS, VANDYKE, and MENDOZA, Circuit Judges.

Petitioner Jose Salonga Tallara (“Tallara”) seeks review of a Board of

Immigration Appeals (“BIA”) decision affirming a decision by an Immigration

Judge (“IJ”) denying Petitioner’s motion to reopen removal proceedings. We have

jurisdiction under 8 U.S.C. § 1252(a), and we deny the petition.

* 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 court reviews the denial of a motion to reopen for an abuse of discretion.

See, e.g., Ghahremani v. Gonzales, 498 F.3d 993, 997 (9th Cir. 2007). Under that

standard, the court must affirm the agency’s denial of reopening unless its decision

is “arbitrary, irrational or contrary to law.” Ontiveros-Lopez v. I.N.S., 213 F.3d 1121,

1124 (9th Cir. 2000) (citation omitted). When, as here, “the BIA issues a Burbano

affirmance, we review the IJ’s decision as if it were the decision of the BIA.” Ahmed

v. Holder, 569 F.3d 1009, 1012 (9th Cir. 2009) (citing Abebe v. Gonzales, 432 F.3d

1037, 1040 (9th Cir. 2005) (en banc) and referring to Matter of Burbano, 20 I. & N.

Dec. 872 (BIA 1994)). We review questions of law de novo. Ruiz-Colmenares v.

Garland, 25 F.4th 742, 748 (9th Cir. 2022).

Tallara challenges the agency’s ruling on a number of grounds, but those

claims are time-barred. Under 8 U.S.C. § 1229a(b)(5)(C)(i), noncitizens who seek

recission of an in absentia order based on exceptional circumstances must file any

motion to reopen within 180 days of the underlying removal order. Tallara did not

meet this deadline. His underlying removal order was entered on April 12, 2013,

but he did not file his motion to reopen until nearly five years later on February 21,

2018. And Tallara has not argued that the statutory deadline should be equitably

tolled or otherwise excused. Cf. Fajardo v. I.N.S., 300 F.3d 1018, 1020–22 (9th Cir.

2002). Because Tallara did not file his motion to reopen within the mandatory

deadline, the BIA was within its discretion to deny his untimely motion.

2 Even if Tallara had filed his motion within the statutory deadline, his claim

would be meritless because he has failed to demonstrate any “exceptional

circumstances” that prevented him from attending his scheduled hearing. The

movant bears the burden of supporting a motion to reopen with specific, detailed

evidence that can support a claim of exceptional circumstances. See Celis-

Castellano v. Ashcroft, 298 F.3d 888, 890 (9th Cir. 2002). But Tallara alleges

nothing more than that he “inadvertently failed to appear for [his] hearing due to

confusion about the hearing date.” A noncitizen’s mistaken belief regarding the

scheduling of a hearing is not an “exceptional circumstance” under 8 U.S.C.

§ 1229a(b)(5)(C)(i). See Valencia-Fragoso v. I.N.S., 321 F.3d 1204, 1205–06 (9th

Cir. 2003) (per curiam) (holding that a misunderstanding of the time for a hearing is

not an “exceptional circumstance” within the meaning of 8 U.S.C. § 1229a).

PETITION DENIED.