Rocha-Saldana v. Garland

• Court: Court of Appeals for the Ninth Circuit
• Decided: May 2, 2024
• Docket: 24-732
• Status: Unpublished

Opinion

NOT FOR PUBLICATION FILED UNITED STATES COURT OF APPEALS MAY 2 2024 MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS FOR THE NINTH CIRCUIT

PEDRO ROCHA-SALDANA, No. 23-1302

Agency No. Petitioner, A216-434-322 v. MEMORANDUM* MERRICK B. GARLAND, Attorney General,

Respondent.

PEDRO ROCHA-SALDANA, No. 24-732

Petitioner, Agency No. A216-434-322 v.

MERRICK B. GARLAND, Attorney General,

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

* This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3. Argued and Submitted April 8, 2024 San Diego, California

Before: WALLACE, McKEOWN, and OWENS, Circuit Judges.

In Case No. 23-1302, Petitioner Pedro Rocha-Saldana petitions for review of

the Board of Immigration Appeals’ (BIA) order. The BIA’s order affirmed the

Immigration Judge’s (IJ) denial of his application for cancellation of removal and

post-conclusion voluntary departure under the Immigration and Nationality Act

(INA) §§ 240A(b) and 240B, respectively. In Case No. 24-732, Rocha-Saldana

petitions for review of the BIA’s denial of his motions to reopen the case and to

reconsider its prior decision. We consolidated the two cases pursuant to 8 U.S.C.

§ 1252(b)(6). We have jurisdiction under 8 U.S.C. § 1252(a)(5). As the parties are

familiar with the facts and procedural history, we do not recount them here. We

deny the petitions.

“We review the BIA’s decision and those parts of the IJ’s decision that the

BIA expressly adopted.” Umana-Escobar v. Garland, 69 F.4th 544, 550 (9th Cir.

2023), citing Garcia v. Wilkinson, 988 F.3d 1136, 1142 (9th Cir. 2021). “We

review the BIA’s legal determinations de novo, including whether the BIA applied

the wrong legal standard.” Id., citing Garcia, 988 F.3d at 1142, 1146.

We review the denial of a motion to reopen and a motion to reconsider for

abuse of discretion. Lara-Torres v. Ashcroft, 383 F.3d 968, 972 (9th Cir. 2004),

amended sub nom. Lara-Torres v. Gonzales, 404 F.3d 1105 (9th Cir. 2005). “We

2 must uphold the [BIA’s] ruling ‘[u]nless [it] acted arbitrarily, irrationally, or

contrary to law.’” Id. (last two alterations in original), quoting Lo v. Ashcroft, 341

F.3d 934, 937 (9th Cir. 2003).

1. Case No. 23-1302. Rocha-Saldana primarily contends that the BIA

erred in affirming the IJ’s denial of his application for cancellation of removal

because the IJ’s decision neither complied with relevant regulatory requirements

and BIA precedent nor sufficiently stated that the denial was on discretionary

grounds. The government responds that Rocha-Saldana did not make these

arguments before the BIA and has thus waived them under 8 U.S.C. § 1252(d)(1)’s

exhaustion requirement. Rocha-Saldana cannot overcome his failure to abide by

section 1252(d)(1)’s claim-processing rule given that the government has raised

the issue. See Umana-Escobar, 69 F.4th at 550 (holding that exhaustion, although

not jurisdictional, is a mandatory claim-processing rule when the government

raises it). Accordingly, we conclude that Rocha-Saldana has waived his arguments

that the IJ’s order was procedurally deficient and not sufficiently clear as to its

discretionary basis.

Rocha-Saldana’s other two arguments—that the BIA (i) impermissibly

substituted its assessment of testimony for the IJ’s factual findings and (ii) cited an

inapposite case when affirming the IJ’s discretionary denial—fail. The BIA

reviews the IJ’s findings of fact under the “clearly erroneous” standard. 8 C.F.R.

3 § 1003.1(d)(3)(i). In affirming the IJ’s discretionary denial of the application, the

BIA cited the IJ’s factual findings made at the end of the hearing. It is of no

moment that the BIA also cited Rocha-Saldana’s underlying deposition testimony,

which the IJ relied upon in making his decision, in determining whether the IJ’s

factual findings were clearly erroneous. Further, Rocha-Saldana’s argument that

the BIA erroneously cited In re C-V-T-, 22 I. & N. Dec. 7 (BIA 1998), because it

involved 8 U.S.C. § 1229b(a) rather than § 1229b(b)—the provision under which

Rocha-Saldana brought his application for cancellation of removal—is not

persuasive. Although In re C-V-T- involved a different statutory provision, the

BIA’s discussion of the IJ’s ability to exercise discretion in that case equally

applies here. Moreover, the difference in statutory eligibility under the provisions

is not relevant where the IJ assumed that Rocha-Saldana met all the statutory

requirements under § 1229b(b).

As for the IJ’s denial of post-conclusion voluntary departure, Rocha-Saldana

argues that the BIA erred by conducting a de novo review. We disagree. “The

[BIA] may review questions of law, discretion, and judgment and all other issues

in appeals from decisions of immigration judges de novo.” 8 C.F.R.

§ 1003.1(d)(3)(ii). Rocha-Saldana argued before the BIA that the IJ abused his

4 discretion in denying post-conclusion voluntary departure by misapplying the law.

As such, de novo review by the BIA was proper.1

2. Case No. 24-732. The BIA is entitled to deny a motion to reopen the

case if “the movant would not be entitled to the discretionary grant of relief which

he sought.” Fonseca-Fonseca v. Garland, 76 F.4th 1176, 1180 (9th Cir. 2023),

quoting Najmabadi v. Holder, 597 F.3d 983, 986 (9th Cir. 2010). In making that

determination, the BIA must decide whether the new evidence “would likely

change” the results of the case. Id. at 1183. Here, the BIA concluded that the new

evidence, including Rocha-Saldana’s youngest son’s autism diagnosis and Rocha-

Saldana’s representation that he paid certain taxes owed, would not likely change

the IJ’s denial on discretionary grounds because Rocha-Saldana’s “adverse

considerations outweigh[ed] his equities.” The BIA observed that the IJ was aware

of Rocha-Saldana’s son’s health and behavior issues, including that he was

possibly autistic, at the removal hearing. The BIA further determined that the new

evidence indicating that Rocha-Saldana “purportedly” submitted tax returns for

prior years and paid the owed taxes did not “materially change” the analysis. We

conclude that the BIA did not abuse its discretion in denying Rocha-Saldana’s

motion to reopen.

1 Rocha-Saldana’s argument that the IJ’s misapplication of the law requires a remand is without merit. We need not review that portion of the IJ’s denial because the BIA did not expressly adopt it. See Umana-Escobar, 69 F.4th at 550.

5 As for the motion to reconsider, Rocha-Saldana contends that the BIA

abused its discretion by not considering whether the 30-day deadline to file such

motion should have been equitably tolled. However, Rocha-Saldana did not raise

this argument before the BIA. Rather, he only argued that the BIA should exercise

its sua sponte authority to reconsider its decision. Relying on Matter of J-J-, 21 I.

& N. Dec. 976, 984 (BIA 1997), the BIA determined the fact that Rocha-Saldana

worked diligently with his new counsel after the deadline to file the motion had

passed did not constitute “an exceptional situation” warranting reconsideration.

Rocha-Saldana presents no argument as to why the BIA erred in making this

determination. We conclude that the BIA did not abuse its discretion in denying

the motion reconsider.

PETITIONS DENIED.2

2 In Case No. 24-732, we treat the government’s absence of a timely response to Rocha-Saldana’s Motion to Stay Removal, Dkt. 4, as a notice of non-opposition. See 9th Cir. Gen. Ord. 6.4(c)(5). The temporary stay of removal continues until the mandate issues unless the court orders otherwise. See id.