Lopez Guevara v. Garland

• Court: Court of Appeals for the Ninth Circuit
• Decided: April 19, 2023
• Docket: 22-21
• Status: Unpublished

Opinion

Case: 22-21, 04/19/2023, DktEntry: 33.1, Page 1 of 5

NOT FOR PUBLICATION FILED UNITED STATES COURT OF APPEALS APR 19 2023 MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS FOR THE NINTH CIRCUIT

JOSE LUIS LOPEZ-GUEVARA, No. 22-21

Petitioner, Agency No. A022-317-477

v. MEMORANDUM* MERRICK GARLAND, Attorney General,

Respondent.

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

Submitted April 17, 2023 ** Pasadena, California

Before: WARDLAW and H.A. THOMAS, Circuit Judges, and ROSENTHAL,*** District Judge.

Jose Luis Lopez-Guevara, a native and citizen of El Salvador, seeks review of

a Board of Immigration Appeals (“BIA”) order denying his untimely motion to

* 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 Honorable Lee H. Rosenthal, United States District Judge for the Southern District of Texas, sitting by designation. Case: 22-21, 04/19/2023, DktEntry: 33.1, Page 2 of 5

reopen his removal proceedings. We have jurisdiction under 8 U.S.C. § 1252.

Bonilla v. Lynch, 840 F.3d 575, 581 (9th Cir. 2016). “We review the Board’s denial

of a motion to reopen for abuse of discretion, but review purely legal questions de

novo.” Id. The BIA abuses its discretion when its decision is arbitrary, irrational,

or contrary to law. Martinez-Hernandez v. Holder, 778 F.3d 1086, 1088 (9th Cir.

2015). Finding no abuse of discretion or legal error, we deny the petition for review.

Lopez-Guevara first entered the United States in 1970. He departed the

United States on August 29, 1978, only to reenter the next day. In September 1981,

Lopez-Guevara was convicted in the Superior Court of California of second-degree

murder. He remained in prison until February 2019, when he was released on parole.

Shortly after his release, the Department of Homeland Security initiated removal

proceedings against Lopez-Guevara.

Around the same time, Lopez-Guevara filed an application for asylum,

withholding of removal, and protection under the Convention Against Torture

(“CAT”). An Immigration Judge denied Lopez-Guevara’s application on April 7,

2020. The order specified that Lopez-Guevara had until May 7, 2020, to appeal.

Lopez-Guevara filed a notice of appeal on April 17, 2020, while in

immigration custody. On April 24, 2020, the BIA rejected the notice of appeal on

the basis that Lopez-Guevara had failed to either pay the filing fee or submit a fee-

waiver request. The rejection letter stated that Lopez-Guevara could correct the error

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and resubmit the appeal but noted, in all caps, that “THIS DOES NOT EXTEND

THE ORIGINAL STRICT 30-DAY TIME LIMIT within which you must file your

appeal.”

On May 5, 2020, two days before the deadline to appeal expired, Lopez-

Guevara resubmitted his appeal, attaching a fee-waiver request form. On May 7,

2020 (the deadline to appeal), the BIA again rejected the appeal because Lopez-

Guevara had submitted an incorrect fee-waiver form. The notice of rejection

attached the correct form and stated that “[a]ny corrected appeal resubmitted after

the 30-day time limit must be filed within 15 days of the date of this notice.” The

notice was mailed to the Immigration and Customs Enforcement Detention Center

where Lopez-Guevara had been detained until May 6, 2020, the day before the notice

was sent.

On May 21, 2020, Lopez-Guevara filed a change of address form, updating

his address to reflect his release from custody. On July 7, 2020, he submitted his

appeal for a third time, using the same incorrect fee-waiver form he had attached to

his second appeal. The BIA mailed Lopez two identical letters, one dated August

14, 2020, and one dated August 26, 2020, to his correct address, rejecting his third

appeal for failure to include the correct fee-waiver form. The letters again stated

that “[a]ny corrected appeal resubmitted after the 30-day time limit must be filed

within 15 days of the date of this notice.”

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Lopez-Guevara sent in a fourth appeal, with the correct fee-waiver form

attached, on September 1, 2020. The BIA summarily dismissed this appeal as

untimely because it should have been filed by May 7, 2020. Lopez-Guevara filed a

motion for reconsideration.

The BIA found that Lopez-Guevara’s statements were not supported by the

evidence. The BIA did not abuse its discretion in making this finding. Although

Lopez-Guevara initially blamed the delay in his appeal on a custody officer who

provided a wrong form and on problems delivering and sending mail at the detention

center, the BIA noted that he later recanted both those accusations and conceded that

ICE did try to file his Notice of Appeal twice. The BIA also found that Lopez-

Guevara did not take appropriate steps to inform the BIA of his change in address

after his release from immigration custody. The BIA explained that under 8 C.F.R.

§ 1003.15(d)(2), Lopez-Guevara was “required to provide written notice of a change

in address to the Board within 5 days, but [he] did not update his address with the

Board until more than two weeks after his release from DHS custody.” The BIA

noted that although Lopez-Guevara had claimed that he had tried to update his

address sooner, he failed to provide “evidence in support of this contention, such as

an affidavit from the respondent or the respondent’s son.”

Lopez-Guevara has not identified an error of law or fact in the BIA’s decision

to deny review of the untimely appeal. 8 U.S.C. § 1229a(c)(6)(C); 8 C.F.R.

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§ 1003.2(b)(1). Lopez-Guevara argues that the BIA deprived him of due process

because it refused to consider the appeals he filed with an improper fee-waiver form,

even though the fee-waiver form he initially used strongly resembled the proper

form. But Lopez-Guevara has not argued that the BIA’s failure to consider his

appeal unfairly prejudiced him, as required to make out a due process claim. Zetino

v. Holder, 622 F.3d 1007, 1013 (9th Cir. 2010). Lopez-Guevara’s due process claim

has been forfeited for lack of substantial argument. See Cui v. Garland, 13 F.4th

991, 999 n.6 (9th Cir. 2021). Additionally, the incorrect form Lopez-Guevara

initially submitted before his appeal deadline expired expressly directs filers that, if

they “wish to request a fee waiver for an appeal to the [BIA], [they] must use a Form

EOIR-26A, Appeal Fee Waiver Request.” This instruction put Lopez-Guevara on

notice that he needed to use a different form in April 2020, well before his appeal

deadline expired.

Finally, this Court lacks jurisdiction to review the BIA’s decision not to

exercise its self-certification authority. “[T]he decision of whether to certify a claim

under 8 C.F.R. § 1003.1(c) is committed to agency discretion.” Idrees v. Barr, 923

F.3d 539, 543 (9th Cir. 2019). Because the BIA did not abuse its discretion or violate

the Due Process Clause in denying Lopez-Guevara’s motion for reconsideration, and

we do not have jurisdiction to review the remainder of the petition, the petition is

DISMISSED in part and DENIED in part.