Loya v. Garland

• Court: Court of Appeals for the Tenth Circuit
• Decided: August 9, 2022
• Docket: 21-9594
• Status: Unpublished

Opinion

Appellate Case: 21-9594 Document: 010110722260 Date Filed: 08/09/2022 Page: 1 FILED United States Court of Appeals UNITED STATES COURT OF APPEALS Tenth Circuit

FOR THE TENTH CIRCUIT August 9, 2022 _________________________________ Christopher M. Wolpert Clerk of Court GREGORIO GODINEZ LOYA,

Petitioner,

v. No. 21-9594 (Petition for Review) MERRICK B. GARLAND, United States Attorney General,

Respondent. _________________________________

ORDER AND JUDGMENT* _________________________________

Before TYMKOVICH, Chief Judge, MATHESON and EID, Circuit Judges. _________________________________

Gregorio Godinez Loya is a Mexican national who seeks review of a Board of

Immigration Appeals (BIA) decision denying his motion for reconsideration. We

dismiss in part and deny in part the petition for review.

I

Loya is subject to a removal order from 1996. He also has an extensive

criminal record, including three unlawful-reentry convictions, see 8 U.S.C. § 1326(a),

* 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 This order and judgment is not binding precedent, except under the doctrines of law of the case, res judicata, and collateral estoppel.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: 21-9594 Document: 010110722260 Date Filed: 08/09/2022 Page: 2

a felony drug-trafficking conviction, and two felony convictions for driving under the

influence. When Loya was most recently apprehended, the Department of Homeland

Security reinstated his removal order, see id. § 1231(a)(5), and placed him in

withholding-only proceedings, during which he applied for withholding of removal

and relief under the Convention Against Torture (CAT).

After a hearing, an immigration judge (IJ) denied Loya’s applications on

multiple grounds. First, the IJ determined that several of his convictions constituted

particularly serious crimes (PSCs) that rendered him ineligible for withholding of

removal under both the Immigration & Nationality Act (INA) and the CAT. See id.

§ 1231(b)(3)(B)(ii); 8 C.F.R. § 1208.16(d)(2); Villegas-Castro v. Garland, 19 F.4th

1241, 1244 (10th Cir. 2021). Alternatively, the IJ ruled that for numerous reasons on

the merits Loya was not entitled to withholding of removal under either the INA or

the CAT. And finally, the IJ concluded that Loya failed to show he was entitled to

deferral of removal under the CAT.

Loya appealed to the BIA, challenging some of the IJ’s merits rulings for

denying withholding of removal under the INA and the CAT. But he failed to

challenge the IJ’s other rulings—that his PSCs rendered him ineligible for relief and

that he was not entitled to deferral of removal under the CAT. Thus, the BIA

affirmed the IJ on the unchallenged grounds and dismissed the appeal. Loya did not

file a petition for review.

Instead, Loya filed a motion for reconsideration, repeating his arguments

challenging the IJ’s merits rulings that he was not entitled to withholding of removal

2 Appellate Case: 21-9594 Document: 010110722260 Date Filed: 08/09/2022 Page: 3

or CAT protection. The BIA declined to reconsider those issues, stating that a

motion for reconsideration was not an opportunity to reargue previous contentions or

raise new arguments that could have been previously asserted. Accordingly, the BIA

denied the motion for reconsideration, and Loya filed his petition for review.

II

At the outset, we dismiss the petition to the extent it challenges the BIA’s

underlying decision. Loya had thirty days from the date of that decision to file a

timely petition for review. 8 U.S.C. § 1252(b)(1). He failed to do so, and his motion

for reconsideration did not toll the filing deadline. See Stone v. INS, 514 U.S. 386,

394-95, 405-06 (1995) (requiring separate and timely petitions for review from the

underlying removal order and the denial of a motion for reconsideration and stating

that a motion for reconsideration does not toll the filing deadline); Infanzon v.

Ashcroft, 386 F.3d 1359, 1361 (10th Cir. 2004) (recognizing court lacked jurisdiction

to review underlying removal order absent a timely petition for review, but court

retained jurisdiction to consider the denial of a motion to reopen).

To the extent Loya challenges the BIA’s denial of reconsideration, we review

for an abuse of discretion. See Rodas-Orellana v. Holder, 780 F.3d 982, 990

(10th Cir. 2015). “The BIA abuses its discretion when its decision provides no

rational explanation, inexplicably departs from established policies, is devoid of any

reasoning, or contains only summary or conclusory statements.” Berdiev v. Garland,

13 F.4th 1125, 1130-31 (10th Cir. 2021) (internal quotation marks omitted).

3 Appellate Case: 21-9594 Document: 010110722260 Date Filed: 08/09/2022 Page: 4

There was no abuse of discretion here. Loya’s motion for reconsideration

reiterated the very same merits arguments he had previously raised on direct appeal

to the BIA, at times verbatim. Compare Admin. R. at 7 (Mot. for Recons.) (“[M]y

family . . . continue[s] in risk of being victims of persecution[.]”), with id. at 72

(direct appeal brief) (“[M]y family . . . continue[s] in risk of being victims of

persecution[.]”). The BIA properly declined to reconsider those previously raised

arguments. See Ahmed v. Ashcroft, 388 F.3d 247, 249 (7th Cir. 2004) (“A motion

[for reconsideration] that merely republishes the reasons that had failed to convince

the tribunal in the first place gives the tribunal no reason to change its mind.”); In re

O-S-G-, 24 I. & N. Dec. 56, 58 (B.I.A. 2006) (“[A] motion to reconsider is not a

process by which a party may submit, in essence, the same brief presented on appeal

and seek reconsideration by generally alleging error in the prior [BIA] decision.”).

Consequently, we deny the petition for review to the extent it challenges the BIA’s

denial of reconsideration.

III

The petition for review is dismissed in part and denied in part. Loya’s motion

to proceed without prepayment of costs and fees is granted.

Entered for the Court

Timothy M. Tymkovich Chief Judge