Leon-Molina v. Garland

• Court: Court of Appeals for the Tenth Circuit
• Decided: September 3, 2024
• Docket: 24-9504
• Status: Unpublished

Opinion

Appellate Case: 24-9504 Document: 010111104047 Date Filed: 09/03/2024 Page: 1 FILED United States Court of Appeals UNITED STATES COURT OF APPEALS Tenth Circuit

FOR THE TENTH CIRCUIT September 3, 2024 _________________________________ Christopher M. Wolpert Clerk of Court KATHERINE JOHANA LEON-MOLINA; MAKAYLA CALDERON-LEON,

Petitioners,

v. No. 24-9504 (Petition for Review) MERRICK B. GARLAND, United States Attorney General,

Respondent. _________________________________

ORDER AND JUDGMENT* _________________________________

Before PHILLIPS, BALDOCK, and FEDERICO, Circuit Judges. _________________________________

Petitioners Katherine Johana Leon-Molina and her daughter Makayla

Calderon-Leon filed applications for asylum, withholding of removal, and protection

under the Convention Against Torture (“CAT”). An immigration judge (“IJ”) denied

the applications. The Bureau of Immigration Appeals (“BIA”) dismissed Petitioners’

appeal after they failed to file a brief, then denied their subsequent motion to

* After examining the briefs and appellate record, this panel has determined unanimously to honor the parties’ request for a decision on the briefs without oral argument. See Fed. R. App. P. 34(f); 10th Cir. R. 34.1(G). The case is therefore submitted without oral argument. This order and judgment is not binding precedent, except under the doctrines of law of the case, res judicata, and collateral estoppel. It may be cited, however, for its persuasive value consistent with Fed. R. App. P. 32.1 and 10th Cir. R. 32.1. Appellate Case: 24-9504 Document: 010111104047 Date Filed: 09/03/2024 Page: 2

reconsider and accept a late-filed brief. Petitioners now seek review of the denial of

the motion to reconsider. Exercising jurisdiction under 8 U.S.C. § 1252, we deny

their petition.

I. Background

Petitioners are citizens of El Salvador who entered the United States in May

2021. The Department of Homeland Security initiated removal proceedings against

them in August 2021. They conceded removability and filed applications for asylum,

withholding of removal, and CAT protection, basing their claims on threats made by

an El Salvadoran gang against Petitioners’ husband and father.

The IJ denied the applications in a decision issued March 10, 2022, and

Petitioners timely appealed to the BIA. In their notice of appeal, Petitioners asserted

the IJ erred in concluding they were ineligible for asylum, withholding of removal,

and CAT protection—but they did not address the IJ’s specific findings. Instead, the

notice indicated Petitioners would file a separate written brief. The BIA issued a

briefing schedule setting the deadline for Petitioners’ brief on August 15, 2023.

Petitioners, however, did not file a brief. Three months after the deadline, the BIA

dismissed the appeal under 8 C.F.R. § 1003.1(d)(2)(i)(A) & (E).

Petitioners then filed a motion asking the Board to accept a late-filed appeal

brief. The motion asserted that Petitioners’ counsel never received a hard copy of the

briefing schedule. The BIA construed the motion as one to reconsider, reinstate the

appeal, and accept the late-filed brief submitted with the motion. It denied the

motion, noting that it sent the briefing schedule to Petitioners’ counsel via email and

2 Appellate Case: 24-9504 Document: 010111104047 Date Filed: 09/03/2024 Page: 3

the email had not been returned as undeliverable. The BIA therefore concluded it

had afforded Petitioners an opportunity to file a brief and had not deprived them of

due process. This petition for review followed.

II. Discussion

Ms. Leon-Molina and her daughter petition this court for review of the BIA’s

denial of their motion to reconsider. We have jurisdiction to do so. See Mata v.

Lynch, 576 U.S. 143, 147 (2015); Infanzon v. Ashcroft, 386 F.3d 1359, 1362

(10th Cir. 2004). We review for an abuse of discretion. Rodas-Orellana v. Holder,

780 F.3d 982, 990 (10th Cir. 2015); 8 C.F.R. § 1003.2(a). Thus, we will reverse the

BIA only if it “provides no rational explanation, inexplicably departs from

established policies, is devoid of any reasoning, or contains only summary or

conclusory statements.” Mahamat v. Gonzales, 430 F.3d 1281, 1283 (10th Cir. 2005)

(quotations omitted).

Petitioners do not argue the BIA abused its discretion in denying their motion

to reconsider. Indeed, Petitioners’ motion did not even argue the BIA erred in

summarily dismissing their appeal. Instead, they requested the BIA to accept a

late-filed appeal brief because Petitioners’ counsel had not received a hard copy of

the briefing schedule. Even accepting counsel’s representation, the BIA denied the

motion because the BIA’s electronic records showed it emailed the briefing schedule

to Petitioners’ counsel on a date certain and the email had not been returned as

undeliverable. This explanation was rational and therefore well within the BIA’s

discretion.

3 Appellate Case: 24-9504 Document: 010111104047 Date Filed: 09/03/2024 Page: 4

Petitioners also argue the BIA should have accepted their late-filed appeal

brief under the doctrine of equitable tolling. See In re Morales-Morales, 28 I&N

Dec. 714, 717 (BIA 2023) (adopting equitable tolling rule set forth in Holland v.

Florida, 560 U.S. 631, 649 (2010)). The government argues Petitioners did not

invoke the doctrine in their motion to reconsider, and therefore the argument is

unexhausted. Mahamat, 430 F.3d at 1283 (“The issue of equitable tolling must be

exhausted through the BIA in order for this court to reach this issue.”). But even if

Petitioners had exhausted the issue, they concede equitable tolling is subject to an

abuse of discretion standard. See Berdiev v. Garland, 13 F.4th 1125, 1129 (10th Cir.

2021). They do not argue the BIA abused its discretion, and we discern no such

abuse of discretion.

Finally, Petitioners attempt to challenge the merits of the underlying decision,

arguing the IJ erred in holding Petitioners did not establish past persecution or a

well-founded fear of persecution on account of a protected ground. But they are

procedurally barred from raising these arguments. In Galvez Piñeda v. Gonzales, 427

F.3d 833 (10th Cir. 2005), the petitioners failed to file an appeal brief, leading to the

BIA’s summary dismissal of their appeal. Id. at 837. In their petition to this court,

the petitioners sought to challenge the IJ’s underlying decision on the merits. Id. We

rejected the attempt, holding that “we will not permit the petitioner[s] to circumvent

proper procedural requirements of the BIA by presenting contentions that were

procedurally barred by the [BIA].” Id. Petitioners likewise cannot circumvent the

BIA’s procedural requirements in this case.

4 Appellate Case: 24-9504 Document: 010111104047 Date Filed: 09/03/2024 Page: 5

III. Conclusion

We uphold the BIA’s denial of Petitioners’ motion to reconsider and deny the

petition.

Entered for the Court

Bobby R. Baldock Circuit Judge