Otis Carr v. Merrick Garland

• Court: Court of Appeals for the Ninth Circuit
• Decided: July 21, 2021
• Docket: 18-72667
• Status: Unpublished

Opinion

FILED NOT FOR PUBLICATION JUL 21 2021 UNITED STATES COURT OF APPEALS MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS

FOR THE NINTH CIRCUIT

OTIS CARR, AKA Anthony George Nos. 18-72667 Brown, AKA Chris Carr, AKA Otis 19-71607 George Carr, AKA Anthony Powell, Agency No. A038-995-631 Petitioner,

v. MEMORANDUM*

MERRICK B. GARLAND, Attorney General,

Respondent.

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

Argued and Submitted July 7, 2021 Seattle, Washington

Before: CLIFTON and IKUTA, Circuit Judges, and CALDWELL,** District Judge.

* This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3. ** The Honorable Karen K. Caldwell, United States District Judge for the Eastern District of Kentucky, sitting by designation. Otis Carr, a native and citizen of Jamaica, seeks review of the decisions of

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

proceedings in Georgia immigration court and denying his motion to terminate the

removal proceedings in California immigration court. We have jurisdiction under

8 U.S.C. § 1252, and we deny the petitions for review.

Even if we assume immigration law precludes concurrent proceedings, the

Notice to Appear (NTA) that initiated the California proceedings on December 15,

2017 (which resulted in the current removal order under review) was filed after the

termination of the New York proceedings and after the Georgia proceedings were

final. See 8 C.F.R. § 1003.14. Therefore, the BIA did not err in dismissing Carr’s

appeal of the California immigration court’s denial of his motion to terminate the

removal proceedings.

Because the New York proceedings were properly terminated,1 we reject

Carr’s argument that he is still entitled to seek relief under § 212(c) of the

Immigration and Nationality Act due to the pendency of New York proceedings

that had commenced before the Illegal Immigration Reform and Immigrant

Responsibility Act of 1996 (IIRIRA)’s effective date. Cf. Pascua v. Holder, 641

1 The record does not show that Carr opposed the government’s motion to terminate the New York Proceedings. 2 F.3d 316, 318–19 (9th Cir. 2011) (holding that while IIRIRA repealed § 212(c),

relief under this provision is available in deportation proceedings that commenced

before IIRIRA’s effective date). Neither the New York proceedings nor the

Georgia proceedings had any effect on the second California proceedings which

were initiated by the filing of a new NTA based on the independent ground that in

2017, he was “an alien present in the United States who has not been admitted or

paroled.” Carr did not challenge the NTA’s charges of removability before the

BIA.

Before the BIA, Carr did not dispute that his motion to reopen proceedings

in the Georgia immigration court was untimely. Nor did he argue that the

untimeliness should be excused under equitable tolling or equitable estoppel

principles. Therefore, to the extent Carr now argues that his untimeliness should

be excused, we do not have jurisdiction to review this unexhausted claim on

appeal. 8 U.S.C. § 1252(d)(1); Zara v. Ashcroft, 383 F.3d 927, 930 (9th Cir.

2004).

In declining to sua sponte reopen the Georgia proceedings, the BIA did not

reach a legal conclusion on whether the Georgia immigration court properly

maintained jurisdiction to adjudicate the 2012-2013 removal proceedings. Instead,

the BIA concluded that regardless of its merits, Carr’s jurisdictional argument did

3 not constitute an exceptional situation that would warrant a sua sponte reopening.

Because the BIA’s order did not contain a legal or constitutional error plain on its

face, we lack jurisdiction to review its decision. See Lona v. Barr, 958 F.3d 1225,

1232, 1234 (9th Cir. 2020).2

PETITION DENIED.

2 We therefore deny as moot the government’s request for a venue transfer. 4