NOT FOR PUBLICATION FILED UNITED STATES COURT OF APPEALS JUL 5 2024 MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS FOR THE NINTH CIRCUIT
NADER OLABI, No. 23-1204 Agency No. Petitioner, A240-253-783 v. MEMORANDUM* MERRICK B. GARLAND, Attorney General,
Respondent.
On Petition for Review of an Order of the Board of Immigration Appeals
Argued and Submitted June 6, 2024 San Francisco, California
Before: S.R. THOMAS and MILLER, Circuit Judges, and BENNETT, District Judge.** Dissent by Judge MILLER.
Petitioner Nader Olabi appeals the Board’s denial of his omnibus motion to
reopen proceedings or reconsider a prior Board order. Because the parties are
familiar with the factual and procedural history of the case, we need not recount it
* This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3. ** The Honorable Richard D. Bennett, United States Senior District Judge for the District of Maryland, sitting by designation. here.
We have jurisdiction under 8 U.S.C. § 1252. We review the denial of a motion
to reopen or reconsider for abuse of discretion. See Sanchez Rosales v. Barr, 980
F.3d 716, 719 (9th Cir. 2020); B.R. v. Garland, 4 F.4th 783, 790 (9th Cir. 2021).
Because we find that (1) the Board appropriately applied its place-of-filing rule in
refusing to consider Olabi’s motion to reopen the proceedings; (2) the Board applied
the appropriate standard and offered a reasoned explanation for its decision denying
Olabi’s motion to reconsider the withdrawal of his appeal; and (3) Olabi’s contention
that the Board’s application of the place-of-filing rule in his case violated his
statutory right to seek reopening is unsupported, we deny the petition for review.
1. On appeal, Olabi contends that the Board erred in refusing to consider his
motion to reopen because the place-of-filing rule is not a jurisdictional restriction on
the Board’s powers of adjudication but a claim-processing rule that promotes orderly
disposition of immigration cases. See Hernandez v. Holder, 738 F.3d 1099, 1102
(9th Cir. 2013). We find that the Board did not abuse its discretion in refusing to
consider Olabi’s motion to reopen. The “place-of-filing rule” provides that the
Board may reopen any case in which it has rendered a decision. 8 C.F.R.
§ 1003.2(a). It is well-established that this rule requires immigrants to file a motion
to reopen with the entity that adjudicated the decision to be reopened. Matter of
Mladineo, 14 I. & N. Dec. 591, 592 (B.I.A. 1974). Applying the place-of-filing rule,
2 23-1204 the Board declined to consider Olabi’s motion to reopen because Olabi had
withdrawn his appeal, thus the Board never rendered a decision on the merits.
Olabi’s argument centers on the Board’s inclusion of the clause “Even if we
had jurisdiction,” which appears at the beginning of the paragraph addressing
Olabi’s motion to reconsider the withdrawal of his appeal; as well as a case cited in
footnote 2: Matter of Lopez, 22 I. & N. Dec. 16 (B.I.A. 1998), which characterized
the Board’s application of the place-of-filing rule in Mladineo as a decision that
rested on jurisdiction. Id. at 17. Indeed, in Hernandez, this Court held that the
place-of-filing rule is a procedural claims-processing rule and not a jurisdictional
restriction. 738 F.3d at 1102. Nevertheless, the Board did not refuse Olabi’s motion
to reopen because it believed the rule was jurisdictional. Rather, the Board explained
that “[a]s we have not considered the respondent’s case on the merits, this motion is
not properly before us” as it “should have been filed with the Immigration Judge
who was last to issue an administratively final order on the merits of the case.” In
other words, the Board simply applied the place-of-filing rule, and Olabi cannot
show that it was an abuse of discretion to require him to comply with a generally
applicable claims-processing rule. We therefore deny the petition with respect to
Olabi’s motion to reopen.
2. Olabi further argues that the Board abused its discretion in denying his
motion to reconsider the withdrawal of his appeal. It is clear from the Board’s order
3 23-1204 that the Board considered Olabi’s motion to reconsider the withdrawal of his appeal
and determined that he had not demonstrated an error of fact or law in the Board’s
prior decision granting his motion to withdraw his appeal. Because the Board
offered a reasoned explanation for its decision that applied the appropriate standard,
the Board did not abuse its discretion in denying Olabi’s motion to reconsider the
withdrawal of his appeal. Lara-Torres v. Ashcroft, 383 F.3d 968, 972 (9th Cir.
2004); see also 8 C.F.R. § 1003.2(b). We therefore deny the petition with respect to
Olabi’s motion to reconsider the withdrawal of his appeal.
3. Lastly, Olabi contends that if the Board’s application of the place-of-filing
rule is upheld in this case, it would violate his statutory right to seek reopening.
While “[a]n [noncitizen] ordered to leave the country has a statutory right to file a
motion to reopen his removal proceedings,” Mata v. Lynch, 576 U.S. 143, 144
(2015) (citing 8 U.S.C. § 1229a(c)(7)(A)), Olabi’s argument on this point is
unavailing. Simply stated, he created the situation that he complains about when he
opted to submit his motion to reopen and his motion to reconsider to the Board,
rather than submitting his motion to reopen to the IJ and his motion to reconsider to
the Board. While Olabi speculates that he could not have submitted separate
motions, he points to no legal authority to establish that is so.
PETITION FOR REVIEW DENIED.
4 23-1204 FILED JUL 5 2024 MILLER, Circuit Judge, dissenting: MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS
In my view, the Board’s laconic order denying Olabi’s motions to reconsider
and reopen does not provide a sufficient explanation of the basis for its decision to
permit us to engage in meaningful review. See Delgado v. Holder, 648 F.3d 1095,
1108 (9th Cir. 2011) (en banc). I would therefore grant the petition for review and
remand for a more reasoned explanation.
The Board relied primarily on its place-of-filing rule. Although that rule is not
jurisdictional, see Hernandez v. Holder, 738 F.3d 1099, 1102 (9th Cir. 2013), the
Board appears to have treated it as if it were. We know that for two reasons: first,
after invoking the place-of-filing rule, the Board began the remainder of its analysis
with the phrase, “[e]ven if we had jurisdiction,” and, second, the Board invoked the
rule even though it was not raised by the Department of Homeland Security. To be
sure, the Board is “free to fashion [its] own rules of procedure,” so it could have
invoked even a non-jurisdictional rule sua sponte. Lopez v. Garland, 60 F.4th 1208,
1212 (9th Cir.
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NOT FOR PUBLICATION FILED UNITED STATES COURT OF APPEALS JUL 5 2024 MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS FOR THE NINTH CIRCUIT
NADER OLABI, No. 23-1204 Agency No. Petitioner, A240-253-783 v. MEMORANDUM* MERRICK B. GARLAND, Attorney General,
Respondent.
On Petition for Review of an Order of the Board of Immigration Appeals
Argued and Submitted June 6, 2024 San Francisco, California
Before: S.R. THOMAS and MILLER, Circuit Judges, and BENNETT, District Judge.** Dissent by Judge MILLER.
Petitioner Nader Olabi appeals the Board’s denial of his omnibus motion to
reopen proceedings or reconsider a prior Board order. Because the parties are
familiar with the factual and procedural history of the case, we need not recount it
* This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3. ** The Honorable Richard D. Bennett, United States Senior District Judge for the District of Maryland, sitting by designation. here.
We have jurisdiction under 8 U.S.C. § 1252. We review the denial of a motion
to reopen or reconsider for abuse of discretion. See Sanchez Rosales v. Barr, 980
F.3d 716, 719 (9th Cir. 2020); B.R. v. Garland, 4 F.4th 783, 790 (9th Cir. 2021).
Because we find that (1) the Board appropriately applied its place-of-filing rule in
refusing to consider Olabi’s motion to reopen the proceedings; (2) the Board applied
the appropriate standard and offered a reasoned explanation for its decision denying
Olabi’s motion to reconsider the withdrawal of his appeal; and (3) Olabi’s contention
that the Board’s application of the place-of-filing rule in his case violated his
statutory right to seek reopening is unsupported, we deny the petition for review.
1. On appeal, Olabi contends that the Board erred in refusing to consider his
motion to reopen because the place-of-filing rule is not a jurisdictional restriction on
the Board’s powers of adjudication but a claim-processing rule that promotes orderly
disposition of immigration cases. See Hernandez v. Holder, 738 F.3d 1099, 1102
(9th Cir. 2013). We find that the Board did not abuse its discretion in refusing to
consider Olabi’s motion to reopen. The “place-of-filing rule” provides that the
Board may reopen any case in which it has rendered a decision. 8 C.F.R.
§ 1003.2(a). It is well-established that this rule requires immigrants to file a motion
to reopen with the entity that adjudicated the decision to be reopened. Matter of
Mladineo, 14 I. & N. Dec. 591, 592 (B.I.A. 1974). Applying the place-of-filing rule,
2 23-1204 the Board declined to consider Olabi’s motion to reopen because Olabi had
withdrawn his appeal, thus the Board never rendered a decision on the merits.
Olabi’s argument centers on the Board’s inclusion of the clause “Even if we
had jurisdiction,” which appears at the beginning of the paragraph addressing
Olabi’s motion to reconsider the withdrawal of his appeal; as well as a case cited in
footnote 2: Matter of Lopez, 22 I. & N. Dec. 16 (B.I.A. 1998), which characterized
the Board’s application of the place-of-filing rule in Mladineo as a decision that
rested on jurisdiction. Id. at 17. Indeed, in Hernandez, this Court held that the
place-of-filing rule is a procedural claims-processing rule and not a jurisdictional
restriction. 738 F.3d at 1102. Nevertheless, the Board did not refuse Olabi’s motion
to reopen because it believed the rule was jurisdictional. Rather, the Board explained
that “[a]s we have not considered the respondent’s case on the merits, this motion is
not properly before us” as it “should have been filed with the Immigration Judge
who was last to issue an administratively final order on the merits of the case.” In
other words, the Board simply applied the place-of-filing rule, and Olabi cannot
show that it was an abuse of discretion to require him to comply with a generally
applicable claims-processing rule. We therefore deny the petition with respect to
Olabi’s motion to reopen.
2. Olabi further argues that the Board abused its discretion in denying his
motion to reconsider the withdrawal of his appeal. It is clear from the Board’s order
3 23-1204 that the Board considered Olabi’s motion to reconsider the withdrawal of his appeal
and determined that he had not demonstrated an error of fact or law in the Board’s
prior decision granting his motion to withdraw his appeal. Because the Board
offered a reasoned explanation for its decision that applied the appropriate standard,
the Board did not abuse its discretion in denying Olabi’s motion to reconsider the
withdrawal of his appeal. Lara-Torres v. Ashcroft, 383 F.3d 968, 972 (9th Cir.
2004); see also 8 C.F.R. § 1003.2(b). We therefore deny the petition with respect to
Olabi’s motion to reconsider the withdrawal of his appeal.
3. Lastly, Olabi contends that if the Board’s application of the place-of-filing
rule is upheld in this case, it would violate his statutory right to seek reopening.
While “[a]n [noncitizen] ordered to leave the country has a statutory right to file a
motion to reopen his removal proceedings,” Mata v. Lynch, 576 U.S. 143, 144
(2015) (citing 8 U.S.C. § 1229a(c)(7)(A)), Olabi’s argument on this point is
unavailing. Simply stated, he created the situation that he complains about when he
opted to submit his motion to reopen and his motion to reconsider to the Board,
rather than submitting his motion to reopen to the IJ and his motion to reconsider to
the Board. While Olabi speculates that he could not have submitted separate
motions, he points to no legal authority to establish that is so.
PETITION FOR REVIEW DENIED.
4 23-1204 FILED JUL 5 2024 MILLER, Circuit Judge, dissenting: MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS
In my view, the Board’s laconic order denying Olabi’s motions to reconsider
and reopen does not provide a sufficient explanation of the basis for its decision to
permit us to engage in meaningful review. See Delgado v. Holder, 648 F.3d 1095,
1108 (9th Cir. 2011) (en banc). I would therefore grant the petition for review and
remand for a more reasoned explanation.
The Board relied primarily on its place-of-filing rule. Although that rule is not
jurisdictional, see Hernandez v. Holder, 738 F.3d 1099, 1102 (9th Cir. 2013), the
Board appears to have treated it as if it were. We know that for two reasons: first,
after invoking the place-of-filing rule, the Board began the remainder of its analysis
with the phrase, “[e]ven if we had jurisdiction,” and, second, the Board invoked the
rule even though it was not raised by the Department of Homeland Security. To be
sure, the Board is “free to fashion [its] own rules of procedure,” so it could have
invoked even a non-jurisdictional rule sua sponte. Lopez v. Garland, 60 F.4th 1208,
1212 (9th Cir. 2023) (quoting Vermont Yankee Nuclear Power Corp. v. Natural Res.
Def. Corp., 435 U.S. 519, 543 (1978)). But the Board did not seem to recognize that
it was doing so, let alone explain why. Nor did it explain why it chose not to apply
the discretionary exception to the place-of-filing rule articulated in Matter of Lopez,
22 I. & N. Dec. 16, 17 (B.I.A. 1998).
5 23-1204 The Board attempted to provide an alternative rationale for its decision, but
that rationale is similarly inscrutable. It mentioned only reopening, not
reconsideration, stating that it “would not reopen proceedings under the
circumstances presented here.” But the reason it gave was that Olabi had “not
demonstrate[d] a material error of fact or law in [the agency’s] prior decision or a
change of law,” which is the standard for reconsideration, 8 C.F.R. § 1003.2(b)(1)
(“[a] motion to reconsider shall state the reasons for the motion by specifying the
errors of fact or law in the prior Board decision”), not reopening, id. § 1003.2(c)(1)
(“[a] motion to reopen proceedings shall state the new facts that will be proven at a
hearing to be held if the motion is granted”). It seems likely that the use of the word
“reopen” was a scrivener’s error and that the Board meant to refer to reconsideration,
but that leaves us with no explanation for the denial of reopening. I am therefore
unable to say that “the agency’s path may reasonably be discerned.” Hernandez v.
Garland, 52 F.4th 757, 768 (9th Cir. 2022) (quoting Motor Vehicle Mfrs. Ass’n of
U.S., Inc. v. State Farm Mut. Auto. Ins. Co., 463 U.S. 29, 43 (1983)).
6 23-1204