Juvenal Leon-Mondragon v. Merrick Garland

• Court: Court of Appeals for the Ninth Circuit
• Decided: April 16, 2021
• Docket: 19-71774
• Status: Unpublished

Opinion

FILED NOT FOR PUBLICATION APR 16 2021 UNITED STATES COURT OF APPEALS MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS

FOR THE NINTH CIRCUIT

JUVENAL LEON-MONDRAGON, No. 19-71774

Petitioner, Agency No. A075-093-666

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

Respondent.

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

Submitted April 14, 2021** San Francisco, California

Before: THOMAS, Chief Judge, and R. NELSON and HUNSAKER, Circuit Judges.

Juvenal Leon-Mondragon appeals from the denial of his motion to reopen

removal proceedings that resulted in a grant of voluntary departure in 2003. We

have jurisdiction to review denials of motions to reopen under 8 U.S.C. § 1252.

* 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). See Flores v. Barr, 930 F.3d 1082, 1086 (9th Cir. 2019) (per curiam). But we may

consider a petition for review challenging such a denial only if the petitioner has

“exhausted all administrative remedies available to [him] as of right.” 8 U.S.C.

§ 1252(d)(1). “Exhaustion requires a non-constitutional legal claim to the court on

appeal to have first been raised in the administrative proceedings below” and “to

have been sufficient to put the BIA on notice of what was being challenged.” Bare

v. Barr, 975 F.3d 952, 960 (9th Cir. 2020) (internal citations omitted). We review

the denial of reopening for an abuse of discretion, which occurs when the denial is

“arbitrary, irrational, or contrary to law.” Flores, 930 F.3d at 1087. We “review

purely legal questions de novo.” Id. We dismiss in part and deny in part the

petition for review.

I

We lack jurisdiction to review Leon-Mondragon’s argument, raised for the

first time in his petition for review, that the Immigration Judge (“IJ”) lacked

jurisdiction over his removal proceedings because the Notice to Appear (“NTA”)

that initiated those proceedings did not identify the “address of the Immigration

Court” where the NTA was filed, as 8 C.F.R. § 1003.15(b) requires. See

Honcharov v. Barr, 924 F.3d 1293, 1296 n.2 (9th Cir. 2019) (per curiam)

(explaining that a petitioner’s failure to present a claim to the BIA “generally bars

2 us, for lack of subject-matter jurisdiction, from reaching the merits” of that claim).

Accordingly, we dismiss the petition insofar as it presents an unexhausted

argument in challenging the agency’s jurisdiction.

II

The Board of Immigration Appeals (“BIA”) did not err in declining to

terminate Leon-Mondragon’s removal proceedings, where the NTA that initiated

those proceedings omitted the time, date, and place of the initial removal hearing,

but Leon-Mondragon subsequently received a notice of hearing containing that

information and “attended all removal hearings thereafter.” See Aguilar Fermin v.

Barr, 958 F.3d 887, 889 (9th Cir. 2020) (“[A]n initial NTA need not contain time,

date, and place information to vest an immigration court with jurisdiction if such

information is provided before the hearing.”); see also Karingithi v. Whitaker, 913

F.3d 1158, 1160 (9th Cir. 2019); 8 C.F.R. § 1003.18(b) (requiring the NTA to

include time, date, and place information only “where practicable”).

III

The BIA did not abuse its discretion in denying Leon-Mondragon’s motion

to reopen for the purpose of seeking cancellation of removal. Leon-Mondragon

did not file an application for cancellation of removal. See 8 C.F.R. § 1003.2(c)(1)

(“A motion to reopen proceedings for the purpose of submitting an application for

3 relief must be accompanied by the appropriate application for relief and all

supporting documentation.”). Nor did he otherwise seek to demonstrate his prima

facie eligibility for that relief. He offered no evidence to establish his good moral

character, that he has not been convicted of a disqualifying offense, or that his

removal would cause one of his qualifying relatives “exceptional and extremely

unusual hardship.” Lanuza v. Love, 899 F.3d 1019, 1021–22 (9th Cir. 2018)

(citing 8 U.S.C. § 1229b(b)(1)). Thus, the agency properly declined to reopen

proceedings to permit Leon-Mondragon to pursue cancellation of removal. See

Garcia v. Holder, 621 F.3d 906, 912 (9th Cir. 2010) (“The motion [to reopen] will

not be granted unless it establishes a prima facie case for relief”—“established

when the evidence reveals a reasonable likelihood that the statutory requirements

for relief have been satisfied.” (citations and quotation marks omitted)).

IV

Leon-Mondragon has waived review of the agency’s denial of his motion to

reopen based on ineffective assistance of counsel (“IAC”). It is undisputed that

Leon-Mondragon filed his motion well after the 90-day deadline. See 8 U.S.C. §

1229a(c)(7)(C)(i). That deadline is subject to equitable tolling if the movant

shows, among other things, that “he demonstrated due diligence in discovering”

the IAC that prevented timely filing. Flores, 930 F.3d at 1085. Here, the BIA

4 affirmed the denial of equitable tolling on the ground that Leon-Mondragon failed

to demonstrate such diligence in the nearly 13 years between the removal order and

his motion to reopen based on IAC. By failing to challenge this dispositive

determination, Leon-Mondragon has waived review of it. See Nguyen v. Barr, 983

F.3d 1099, 1101–02 (9th Cir. 2020); see also Bonilla v. Lynch, 840 F.3d 575, 583

(9th Cir. 2016) (“enforc[ing] the denial” of an untimely motion to reopen for

adjustment of status where there was an unexplained “six year gap . . . in [the

petitioner’s] pursuit of legal advice” and, thus, declining to “reach the Board’s

other bases for denying the motion”).

V

The BIA did not abuse its discretion in declining to reopen to permit Leon-

Mondragon to pursue a claim under the Convention Against Torture (“CAT”) on

the basis of changed country conditions. It was neither arbitrary nor irrational for

the BIA to conclude that, even if extortion, kidnapping, and violent crime have

increased in Mexico since 2003, Leon-Mondragon has not established prima facie

eligibility for CAT relief because his evidence does not demonstrate that he faces a

particularized threat of torture in Mexico. See Flores-Vega v. Barr, 932 F.3d 878,

881–82, 887 (9th Cir. 2019) (affirming the denial of CAT relief despite testimony

“that all of Mexico was unsafe due to crime and that [the petitioner] was afraid he

5 would be kidnapped because people in Mexico would assume his family in the

United States had money for a ransom”); Delgado-Ortiz v. Holder, 600 F.3d 1148,

1151–52 (9th Cir. 2010) (affirming the denial of a motion to reopen to apply for

CAT relief where the petitioners feared torture as “returning Mexicans from the

United States” based on anecdotal evidence that one of their relatives and other

“people who ha[d] gone to Mexico on vacation” had been robbed and assaulted

during such visits).

PETITION DISMISSED IN PART; DENIED IN PART.