Pascual Tomas-Gaspar v. Merrick Garland

Opinion

NOT FOR PUBLICATION FILED UNITED STATES COURT OF APPEALS DEC 4 2024

FOR THE NINTH CIRCUIT MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS

PASCUAL LUCIANO TOMAS-GASPAR, No. 19-72934 Petitioner, Agency No. A076-704-779 v. MERRICK B. GARLAND, Attorney MEMORANDUM* General, Respondent.

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

Submitted December 2, 2024** San Francisco, California

Before: COLLINS, VANDYKE, and MENDOZA, Circuit Judges. Petitioner Pascual Luciano Tomas-Gaspar, a citizen of Guatemala, petitions

for review of a decision by the Board of Immigration Appeals (“BIA”) denying his

fourth motion to reopen his removal proceedings. We have jurisdiction under

§ 242 of the Immigration and Nationality Act (“INA”), 8 U.S.C. § 1252. We

review the denial of a motion to reopen for abuse of discretion. Fonseca-Fonseca

v. Garland, 76 F.4th 1176, 1180 (9th Cir. 2023). Under this standard, we must

* This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3. ** The panel unanimously concludes that this case is suitable for decision without oral argument. See FED. R. APP. P. 34(a)(2)(C). “uphold the [BIA’s] ruling unless it acted arbitrarily, irrationally, or contrary to

law.” Lara-Torres v. Ashcroft, 383 F.3d 968, 972 (9th Cir. 2004) (simplified). We

deny the petition.

1. Tomas-Gaspar contends that because his original August 17, 1999 Notice

to Appear (“NTA”) for a removal hearing lacked a date, time, and place for his

hearing, the immigration court violated 8 C.F.R. § 1003.14(a) and therefore lacked

jurisdiction over his removal proceedings. But this contention lacks merit because

“§ 1003.14(a) is a nonjurisdictional claim-processing rule.” United States v.

Bastide-Hernandez, 39 F.4th 1187, 1193 (9th Cir. 2022) (en banc). And in any

event, the immigration court complied with § 1003.14 by later supplementing the

NTA with a notice of hearing providing the missing information. Id.

2. Tomas-Gaspar alternatively contends that, because his NTA did not

comply with § 239 of the INA, 8 U.S.C. § 1229, he “is entitled to [a] termination

of proceedings based on a ‘Claims-Processing Rule’ theory.” But Tomas-Gaspar

never raised this argument before the BIA and instead argued exclusively that the

immigration court lacked jurisdiction over his removal proceedings pursuant to

§ 1003.14(a). Accordingly, Tomas-Gaspar’s claims-processing argument was not

properly exhausted. See Umana-Escobar v. Garland, 69 F.4th 544, 550 (9th Cir.

2023).

PETITION DENIED.