Ramos-Sanchez v. Garland

• Court: Court of Appeals for the Ninth Circuit
• Decided: April 17, 2023
• Docket: 21-393
• Status: Unpublished

Opinion

Case: 21-393, 04/17/2023, DktEntry: 32.1, Page 1 of 3

NOT FOR PUBLICATION FILED UNITED STATES COURT OF APPEALS APR 17 2023 MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS FOR THE NINTH CIRCUIT

Juan Pablo Ramos-Sanchez, No. 21-393

Petitioner, Agency No. A098-697-697

v. MEMORANDUM* Merrick B. Garland, U.S. Attorney General,

Respondent.

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

Submitted April 13, 3023** Seattle, Washington

Before: McKEOWN, BYBEE, and FORREST, Circuit Judges.

Petitioner Juan Pablo Ramos-Sanchez seeks review of a Board of

Immigration Appeals (BIA) decision denying his motion to reopen. We review

this decision under the “highly deferential” abuse of discretion standard,

reversing only if the BIA acted “arbitrarily, irrationally, or contrary to law.”

Tzompantzi-Salazar v. Garland, 32 F.4th 696, 703 (9th Cir. 2022). “Where the

* 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). Case: 21-393, 04/17/2023, DktEntry: 32.1, Page 2 of 3

BIA issues its own decision but relies in part on the immigration judge’s

reasoning, we review both decisions.” Id. at 702 (citation omitted); see also

Alanniz v. Barr, 924 F.3d 1061, 1065 (9th Cir. 2019) (we review both the BIA

and immigration judge’s (IJ’s) decision to the extent that the BIA decision

“adopts or relies on” the IJ’s reasoning). To the extent that we have jurisdiction,

it is under 8 U.S.C. § 1252. We deny in part and dismiss in part the petition.

1. Motion to Reopen. We reject Ramos-Sanchez’s argument that

Pereira v. Sessions, 138 S. Ct. 2105 (2018), and Niz-Chavez v. Garland, 141 S.

Ct. 1474 (2021), constitute a change in the law applicable to his case that entitles

him to equitable tolling of the deadline to file a motion to reopen. Both cases

concerned the stop-time rule for cancellation of removal and did not address the

immigration court’s jurisdiction, which is the basis of Ramos-Sanchez’s equitable

tolling argument. Niz-Chavez, 141 S. Ct. at 1479–86; Pereira, 138 S. Ct. at 2109–

10; see also United States v. Bastide-Hernandez, 39 F.4th 1187, 1192 (9th Cir.

2022) (en banc) (“Although the statutory definition of an NTA requires that it

contain the date and time of the removal hearing, this provision chiefly concerns

the notice the government must provide noncitizens regarding their removal

proceedings, not the authority of immigration courts to conduct those

proceedings.”) (citation omitted). Accordingly, Ramos-Sanchez is not entitled to

equitable tolling based on a change in the law because neither Pereira nor Niz-

Chavez apply to his case. See Lona v. Barr, 958 F.3d 1225, 1230 (9th Cir. 2020)

(Tolling is available “in cases where the petitioner seeks excusal from

2 21-393 Case: 21-393, 04/17/2023, DktEntry: 32.1, Page 3 of 3

untimeliness based on a change in the law that invalidates the original basis for

removal.”); 8 U.S.C. § 1229a(c)(7)(C). Moreover, even if his motion was timely,

Ramos-Sanchez cannot establish prima facie eligibility for the relief that he seeks

because Pereira and Niz-Chavez are inapplicable. See Tzompantzi-Salazar, 32

F.4th at 703–04.

2. Sua Sponte Reopening. We lack jurisdiction to review Ramos-

Sanchez’s claim that the BIA erred by not sua sponte reopening his immigration

proceedings because the BIA declined to exercise its sua sponte authority as an

exercise of its discretion, not because “it lack[ed] the authority to reopen.” Singh

v. Holder, 771 F.3d 647, 650 (9th Cir. 2014); see also Lona, 958 F.3d at 1227.

PETITION DENIED IN PART AND DISMISSED IN PART.

3 21-393