Luis Camacho v. William Barr

• Court: Court of Appeals for the Ninth Circuit
• Decided: June 11, 2020
• Docket: 16-71537
• Status: Unpublished

Opinion

FILED NOT FOR PUBLICATION JUN 11 2020 UNITED STATES COURT OF APPEALS MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS

FOR THE NINTH CIRCUIT

LUIS ARTURO PARRA CAMACHO, No. 16-71537 AKA Luis Camacho Parra, Agency No. A095-660-807 Petitioner,

v. MEMORANDUM*

WILLIAM P. BARR, Attorney General,

Respondent.

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

Submitted June 9, 2020** San Francisco, California

Before: THOMAS, Chief Judge, and SCHROEDER and BRESS, Circuit Judges.

Luis Arturo Parra Camacho (“Parra”) petitions for review of a decision by

the Board of Immigration Appeals (“BIA”) denying his motion to reopen his

removal proceedings. We have jurisdiction under 8 U.S.C. § 1252 and we deny the

* 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). petition. Because the parties are familiar with the history of the case, we need not

recount it here.

We review the BIA’s denial of a motion to reopen removal proceedings for

abuse of discretion. Avagyan v. Holder, 646 F.3d 672, 674 (9th Cir. 2011). We

lack jurisdiction to review the BIA’s refusal to reopen deportation proceedings sua

sponte except “for the limited purpose of reviewing the reasoning behind the

decisions for legal or constitutional error.” Bonilla v. Lynch, 840 F.3d 575, 588

(9th Cir. 2016).

The BIA did not abuse its discretion in concluding that Parra’s motion to

reopen was untimely because Parra filed the petition more than 90 days after the

BIA’s final decision, see 8 U.S.C. § 1229a(c)(7)(C)(i); 8 C.F.R. § 1003.2(c)(2),

and the BIA properly concluded that the vacatur of Parra’s prior conviction did not

bring his motion within any statutory or regulatory exception to the time limit on

motions to reopen, see 8 U.S.C. § 1229a(c)(7)(C); 8 C.F.R. § 1003.2(c)(3).

We decline to address Parra’s argument, made for the first time in his reply

brief, that the BIA may have committed an error of law that led it to believe that an

exercise of its sua sponte power to reopen proceedings would have been futile. See

Turtle Island Restoration Network v. U.S. Dep’t of Commerce, 672 F.3d 1160,

1166 n.8 (9th Cir. 2012) (“[A]rguments raised for the first time in a reply brief are

2 waived.”). In any case, our “review under Bonilla is constricted to legal or

constitutional error that is apparent on the face of the BIA’s decision and does not

extend to speculating whether the BIA might have misunderstood some aspect of

its discretion.” See Lona v. Barr, No. 17-70329, — F.3d —, 2020 WL 2507362, at

*8 (9th Cir. May 15, 2020) (citing Bonilla, 840 F.3d at 588).

We deny Parra’s motion to remand to the BIA to determine whether it had

jurisdiction over his case under Pereira v. Sessions, 138 S. Ct. 2105 (2018). As

Parra himself concedes, Pereira did not concern the immigration court’s

jurisdiction. See id. at 2110. Moreover, this Court and the BIA have already

rejected the precise argument Parra makes here. See Aguilar Fermin v. Barr, 958

F.3d 887, 895 (9th Cir. 2020) (distinguishing Pereira and holding that a notice to

appear (“NTA”) that otherwise complies with regulations but fails to include date,

time, and location information vests jurisdiction in the immigration court); Matter

of Bermudez-Cota, 27 I. & N. Dec. 441, 447 (BIA 2018) (an NTA that does not

specify the time and place of a non-citizen’s initial removal hearing still vests an

immigration judge with jurisdiction over the removal proceedings so long as a

notice of hearing specifying this information is later sent to the non-citizen).

We also deny Parra’s motion to supplement the record on appeal. Our

review of BIA decisions is generally “confined to the administrative record before

3 the BIA.” Dent v. Holder, 627 F.3d 365, 371 (9th Cir. 2010). We “may review

out-of-record evidence only where (1) the Board considers the evidence; or (2) the

Board abuses its discretion by failing to consider such evidence upon the motion of

an applicant.” Id. (quoting Fisher v. I.N.S., 79 F.3d 955, 964 (9th Cir. 1996) (en

banc)). Neither circumstance is present here.

PETITION DENIED.