Rigoberto Sanchez-Galvez v. Merrick Garland

• Court: Court of Appeals for the Ninth Circuit
• Decided: July 14, 2022
• Docket: 20-73027
• Status: Unpublished

Opinion

NOT FOR PUBLICATION FILED UNITED STATES COURT OF APPEALS JUL 14 2022 MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS FOR THE NINTH CIRCUIT

RIGOBERTO SANCHEZ-GALVEZ, No. 20-73027

Petitioner, Agency No. A044-568-617

v. MEMORANDUM* MERRICK B. GARLAND, Attorney General,

Respondent.

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

Submitted July 6, 2022** Seattle, Washington

Before: HAWKINS and BUMATAY, Circuit Judges, and SEEBORG,*** District Judge.

Petitioner Rigoberto Sanchez-Galvez, a native and citizen of Mexico,

petitions for review of a denial of a motion to reopen administrative removal

* 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). *** The Honorable Richard Seeborg, Chief United States District Judge for the Northern District of California, sitting by designation. proceedings by the Board of Immigration Appeals (“BIA”). We have jurisdiction

under 8 U.S.C. § 1252. We review the BIA’s denial of a motion to reopen for

abuse of discretion, i.e., whether it was “arbitrary, irrational, or contrary to law.”

Singh v. INS, 295 F.3d 1037, 1039 (9th Cir. 2002) (internal quotation marks

omitted); Cano-Merida v. INS, 311 F.3d 960, 964 (9th Cir. 2002). “We review the

[BIA’s] legal conclusions de novo and its factual findings for substantial

evidence.” Bringas-Rodriguez v. Sessions, 850 F.3d 1051, 1059 (9th Cir. 2017) (en

banc) (citations omitted). We deny the petition for review.

Petitioner was admitted to this country as a permanent resident in 1994. In

2014, he was found guilty of attempted possession and delivery of a controlled

substance and sentenced to prison. He was ordered removed in January 2019, and

filed an application for cancellation of removal. His application was denied in

March 2019. Petitioner filed a notice of appeal.

Respondent contends that on May 20, 2019, the BIA sent a letter with a

briefing schedule for the appeal, with a deadline of June 10, 2019, for both sides’

briefs. It produces a copy of the letter, but no proof of mailing. Counsel for

Petitioner contends he did not receive this mailing. However, Counsel

acknowledges receiving a mailing sent 10 days later, in which the BIA noted “the

briefing due dates for both parties remain unchanged.” The address for counsel on

the two letters was the same.

2 In August 2019, the BIA affirmed the immigration judge’s decision.

Petitioner did not file a timely motion to reopen that case; instead, he filed an

appeal in this court. During the course of that appeal, his counsel allegedly learned

for the first time that the transcript had been produced and the briefing schedule

had been set. Petitioner then requested remand to the BIA. This court dismissed the

appeal for lack of jurisdiction, because Petitioner had not raised the briefing

schedule issue at the administrative level.

Petitioner then moved the BIA to reopen the proceeding, well after the

allowable period for doing so. Chandra v. Holder, 751 F.3d 1034, 1036 (9th Cir.

2014) (statutory deadline is 90 days). The BIA denied the motion based on its

untimeliness and Department of Homeland Security’s assertion that the briefing

schedule had been mailed. Sanchez-Galvez was then removed in March 2020.

Petitioner argues the failure to send the briefing schedule violated his due

process rights.

Even assuming notice of the briefing schedule was not sent, the BIA did not

abuse its discretion in denying the motion to reopen because Petitioner

acknowledges receiving notice of the BIA’s decision in August. At that point,

Petitioner would have known that the BIA decided his case without receiving his

brief and yet he did not file a timely motion to reopen. Indeed, he waited 259 days

before filing a motion to reopen, without any valid explanation for the delay. And

3 his previous petition for review to this court does not satisfy the requirement to file

a timely motion to reopen. Petitioner’s remaining arguments—concerning

equitable tolling, equitable estoppel, and the rule of lenity—are inapposite. The

BIA thus did not abuse its discretion in denying his untimely motion. See Chandra,

751 F.3d at 1036; Aguilar Fermin v. Barr, 958 F.3d 887, 892 (9th Cir. 2020).

PETITION FOR REVIEW DENIED.