Lino Bernal Pena v. Merrick Garland

• Court: Court of Appeals for the Ninth Circuit
• Decided: December 21, 2021
• Docket: 21-70532
• Status: Unpublished

Opinion

NOT FOR PUBLICATION FILED UNITED STATES COURT OF APPEALS DEC 21 2021 MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS FOR THE NINTH CIRCUIT

LINO BERNAL PENA, No. 21-70532

Petitioner, Agency No. A090-184-297

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

Respondent.

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

Submitted December 14, 2021**

Before: WALLACE, CLIFTON, and HURWITZ, Circuit Judges.

Lino Bernal Pena, a native and citizen of Mexico, petitions pro se for review

of the Board of Immigration Appeals’ (“BIA”) order summarily dismissing his

appeal from an immigration judge’s (“IJ”) decision denying his application for

asylum, withholding of removal, and relief under the Convention Against Torture.

* 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). Our jurisdiction is governed by 8 U.S.C. § 1252. We review for abuse of

discretion the BIA’s decision to summarily dismiss an appeal. Singh v. Gonzales,

416 F.3d 1006, 1009 (9th Cir. 2005). We deny in part and dismiss in part the

petition for review.

The BIA did not abuse its discretion in summarily dismissing Bernal Pena’s

appeal as untimely where it was filed past the deadline and Bernal Pena offered no

explanation for the delay to the BIA. See 8 C.F.R. §§ 1003.1(d)(2)(i)(G),

1003.38(b)-(c). We lack jurisdiction to consider Bernal Pena’s explanations for the

delay raised in the opening brief that were not raised to the BIA. See Barron v.

Ashcroft, 358 F.3d 674, 677-78 (9th Cir. 2004) (court lacks jurisdiction to review

issues or claims not presented below).

To the extent Bernal Pena contends for the first time in his opening brief that

the BIA erred by failing to exercise its discretion to accept his untimely appeal, we

also lack jurisdiction to consider the contention. See id. We further lack

jurisdiction to consider Bernal Pena’s contentions as to the validity of his

underlying criminal conviction, the ground of removability sustained by the IJ,

receipt of the Notice to Appear, ineffective assistance of counsel before the IJ, and

violations of his right to due process before the IJ. See id.

We do not consider newly raised assertions of fact and materials attached to

Bernal Pena’s opening brief that are not part of the administrative record, including

2 21-70532 references to a motion to reopen filed with the BIA after the entry of the final order

on review. See Fisher v. INS, 79 F.3d 955, 963 (9th Cir. 1996) (en banc).

PETITION FOR REVIEW DENIED in part; DISMISSED in part.

3 21-70532