Nicholas Rocha v. Merrick Garland

• Court: Court of Appeals for the Ninth Circuit
• Decided: June 22, 2022
• Docket: 18-72469
• Status: Unpublished

Opinion

NOT FOR PUBLICATION

UNITED STATES COURT OF APPEALS FILED FOR THE NINTH CIRCUIT JUN 22 2022 MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS NICHOLAS VARGAS ROCHA, No. 18-72469

Petitioner, Agency No. A200-248-267

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

Respondent.

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

Submitted June 15, 2022** Pasadena, California

Before: RAWLINSON and CHRISTEN, Circuit Judges, and BENNETT,*** District Judge.

* 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 Richard D. Bennett, United States District Judge for the District of Maryland, sitting by designation. Petitioner Nicholas Vargas Rocha (Rocha), a native and citizen of Mexico,

petitions for review of a decision from the Board of Immigration Appeals (BIA)

denying Rocha’s motion to reopen to pursue adjustment of status and asylum.

Rocha concedes that his motion to reopen is untimely, but contends that equitable

tolling applies to excuse the untimeliness due to the ineffective assistance of his

former counsel. Rocha also maintains that the BIA erred when it determined that

Rocha’s case was not sufficiently exceptional to warrant sua sponte reopening.

Finally, Rocha argues that he was denied due process when the Immigration Judge

(IJ) failed to continue his case to allow Rocha to apply for adjustment of status. To

the extent we have jurisdiction, it is pursuant to 8 U.S.C. § 1252. We DENY in

part and DISMISS in part the petition for review.

We review the BIA’s denial of a motion to reopen for an abuse of discretion.

See Rodriguez v. Garland, 990 F.3d 1205, 1209 (9th Cir. 2021). We must uphold

the agency determination unless the BIA’s decision is “arbitrary, irrational, or

contrary to law.” Singh v. I.N.S., 295 F.3d 1037, 1039 (9th Cir. 2002) (citation

omitted). We lack jurisdiction to consider procedural constitutional arguments that

are not exhausted before the BIA if “an administrative tribunal could remedy” the

alleged procedural error. Barron v. Ashcroft, 358 F.3d 674, 678 (9th Cir. 2004)

(citations omitted); see also Plancarte Sauceda v. Garland, 23 F.4th 824, 835 (9th

2 Cir. 2022), as amended. We retain jurisdiction to review the BIA’s denial of a

motion to reopen sua sponte only for the limited purpose of identifying legal or

constitutional error. See Bonilla v. Lynch, 840 F.3d 575, 581-82 (9th Cir. 2016), as

amended.

1. A motion to reopen generally must be filed within 90 days of a final

removal order, but may be “subject to equitable tolling due to ineffective assistance

of counsel.” Flores v. Barr, 930 F.3d 1082, 1085 (9th Cir. 2019) (citation and

internal quotation marks omitted). Rocha concedes that he has not complied with

the requirements set forth in Matter of Lozada, 19 I. & N. Dec. 637 (BIA 1988),

and the record does not reflect “a clear and obvious case of ineffective assistance”

of counsel. Puga v. Chertoff, 488 F.3d 812, 816 (9th Cir. 2007) (citations omitted).

Consequently, the BIA did not abuse its discretion in rejecting Rocha’s equitable

tolling argument. See Reyes v. Ashcroft, 358 F.3d 592, 598-99 (9th Cir. 2004), as

amended (denying a petition for review when the petitioner failed to satisfy the

Lozada requirements).

In any event, the BIA determined that Rocha did not meet the prima facie

requirement for adjustment of status because his Form I-130 had not been

approved, rendering his eligibility for relief speculative, and counsel for Rocha

conceded that there was a criminal conviction that rendered him statutorily

3 ineligible for adjustment of status. See Agyeman v. I.N.S., 296 F.3d 871, 879 n.2

(9th Cir. 2002) (“The approved I–130 provides prima facie evidence that the alien

is eligible for adjustment as an immediate relative of a United States citizen. . . .”)

(citation omitted) (emphasis added). Nor did Rocha produce evidence of a

likelihood of persecution directed toward him individually. See Ramirez-Munoz v.

Lynch, 816 F.3d 1226, 1229 (9th Cir. 2016) (determining that Americanized

Mexicans and “imputed wealthy Americans” are not cognizable particular social

groups); see also Hussain v. Rosen, 985 F.3d 634, 646 (9th Cir. 2021) (holding that

general fear of societal unrest and violence does not rise to the level of

persecution).

2. Rocha failed to raise a legal or constitutional challenge to the BIA’s denial

of sua sponte reopening. Instead, he argues in a conclusory manner that his case

merits a finding of exceptional circumstances warranting sua sponte reopening.

But, we do not have jurisdiction to consider whether the BIA properly found that

no exceptional circumstances exist, and dismiss the petition as to this issue. See

Bonilla, 840 F.3d at 581-82.

3. Rocha did not exhaust his due process argument before the BIA,

depriving us of jurisdiction to resolve it. See Barron, 358 F.3d at 678. We dismiss

the petition as to this issue. See id.

4 4. To the extent Rocha attempted to raise claims for withholding of removal

and relief under the Convention against Torture by referencing them in his

statement of the issues, by failing to argue those claims in the body of his opening

brief, he waived them. See Martinez-Serrano v. I.N.S., 94 F.3d 1256, 1259-60 (9th

Cir. 1996).

PETITION DENIED in part and DISMISSED in part.