Ramos Mariscal v. Bondi

• Court: Court of Appeals for the Ninth Circuit
• Decided: June 18, 2025
• Docket: 24-1710
• Status: Unpublished

Opinion

NOT FOR PUBLICATION FILED UNITED STATES COURT OF APPEALS JUN 18 2025 MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS FOR THE NINTH CIRCUIT

LUIS RODOLFO RAMOS MARISCAL, No. 24-1710 Agency No. Petitioner, A098-177-869 v. MEMORANDUM* PAMELA BONDI, Attorney General,

Respondent.

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

Argued and Submitted June 5, 2025 Seattle, Washington

Before: HAWKINS, GOULD, and BUMATAY, Circuit Judges.

Petitioner, Luis Rodolfo Ramos Mariscal, has filed a petition for review

contending that the Board of Immigration Appeals (“BIA”) erred in considering

the evidence supporting his motion to reopen immigration proceedings. Ramos

Mariscal also contends that the BIA erred by failing to explain its reasoning why

equitable tolling does not apply in light of a change in law. We “review denials of

* This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3. motions to reconsider or reopen for abuse of discretion.” Suate-Orellana v.

Garland, 101 F.4th 624, 628 (9th Cir. 2024). The BIA abuses its discretion when

it “act[s] arbitrarily, irrationally, or contrary to law.” Mohammed v. Gonzales, 400

F.3d 785, 791 (9th Cir. 2005).

1. Ramos Mariscal moved to reopen his case so that he could seek

cancellation of relief under the Violence Against Women Act (“VAWA”). VAWA

provides, in relevant part, that a petitioner is eligible for cancellation of removal if

the petitioner can demonstrate that he “is the parent of a child of a United States

citizen and the child has been battered or subjected to extreme cruelty by such

citizen parent[.]” 8 U.S.C. § 1229b(b)(2)(A)(i). To make a prima facie case for

cancellation of removal under VAWA, a petitioner must demonstrate “a reasonable

likelihood that the petitioner would prevail on the merits if the motion to reopen

were granted.” Fonseca-Fonseca v. Garland, 76 F.4th 1176, 1179 (9th Cir. 2023).

The BIA denied Ramos Mariscal’s petition because he did not submit adequate

evidence (1) that his daughter was subjected to battery or extreme cruelty and

(2) that his daughter’s mother was a United States citizen.

2. To demonstrate that his daughter was battered or subjected to extreme

cruelty, Ramos Mariscal submitted a declaration alleging that the daughter’s

mother used dangerous drugs in the daughter’s presence. The BIA acknowledged

Ramos Mariscal’s allegations but stated that “even accepting the credibility of the

2 24-1710 respondent’s declaration, the declaration itself shows that these assertions are not

based on his personal knowledge or experience, and the respondent has not set

forth the factual basis of these assertions.” Also, Ramos Mariscal does not

describe how the mother’s drug use constituted a battery or extreme abuse. While

drug use could contribute to an unsafe environment for a child, drug use in the

presence of a child alone does not rise to the level of extreme mistreatment

displayed in cases where cancellation of removal under VAWA was granted.

Compare Hernandez v. Ashcroft, 345 F.3d 824, 838-39 (9th Cir. 2003). The BIA

did not act arbitrarily or irrationally in concluding that Ramos Mariscal’s

unsupported and conclusory declaration did not give rise to “a reasonable

likelihood that the petitioner would prevail on the merits[.]” Fonseca-Fonseca, 76

F.4th at 1179. There was no abuse of discretion in the BIA’s conclusion.

3. Because we uphold the BIA’s denial of reopening based on the lack of

evidence that Ramos Mariscal’s daughter was battered or subjected to extreme

cruelty, we need not consider whether Ramos Mariscal submitted adequate

evidence of the United States citizenship of his daughter’s mother. See INS v.

Bagamasbad, 429 U.S. 24, 25 (1976) (per curiam).

4. Ramos Mariscal also contends the BIA erred by failing to analyze why the

change in law represented by Niz-Chavez v. Garland, 141 S.Ct. 1474 (2021) did

not constitute extraordinary circumstances for the purposes of equitable tolling. To

3 24-1710 qualify for equitable tolling, a petitioner must demonstrate “some extraordinary

circumstance stood in the petitioner’s way and prevented timely filing, and he

acted with due diligence in pursuing his rights.” Lara-Garcia v. Garland, 49 F.4th

1271, 1277 (9th Cir. 2022) (citation omitted). In Niz-Chavez, the Supreme Court

held that, if an immigration applicant receives an NTA that fails to specify the

place, date, and time of the first immigration proceeding, then that NTA is

insufficient to stop the accrual of time for the purposes of demonstrating ten years’

continuous physical presence in the United States, as required for cancellation of

removal. See 593 U.S. at 155. Although changes in law may qualify as an

extraordinary circumstance, see Lona v. Barr, 958 F.3d 1225, 1230-31 (9th Cir.

2020), the BIA found that the change in law from Niz-Chavez would not have

impacted Ramos Mariscal’s original proceeding because he had not been in the

country 10 years, even if time accrued through the entirety of his original

proceeding. The change in law had no causal connection to the petitioner’s ability

to seek relief.

DENIED.

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