Rosario Luna Flores v. Merrick Garland

• Court: Court of Appeals for the Ninth Circuit
• Decided: November 17, 2023
• Docket: 20-72950
• Status: Unpublished

Opinion

NOT FOR PUBLICATION FILED NOV 17 2023 UNITED STATES COURT OF APPEALS MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS FOR THE NINTH CIRCUIT

ROSARIO LUNA FLORES; ERIK No. 20-72950 ESTEBAN LOPEZ LUNA; CRISTOFER LOPEZ LUNA; MELVA ELIU BRAVO Agency Nos. A215-820-208 MORALES; ESTRELLA GUADALUPE A215-820-209 LUNA BRAVO, A215-820-210 A215-817-606 Petitioners, A215-817-607

v. MEMORANDUM *

MERRICK B. GARLAND, Attorney General,

Respondent.

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

Submitted November 13, 2023** Pasadena, California

Before: PARKER,*** BYBEE, and LEE, Circuit Judges.

* 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 Barrington D. Parker, Jr., United States Circuit Judge for the U.S. Court of Appeals for the Second Circuit, sitting by designation. 1 Petitioners, two adult mothers and their three minor children, 1 are Mexican

nationals. They and six relatives sought asylum in the United States following an

alleged attempt on the life of their relative, a candidate for public office in Mexico.

Their petition requests review of an immigration judge’s (“IJ’s”) denial of their

motions for consolidation and to continue their deportation hearing, as affirmed by

the Board of Immigration Appeals (“BIA” or “Board”). We have jurisdiction under

8 U.S.C. § 1252(a)(1); review the BIA’s “factual findings for substantial evidence

and legal questions de novo,” Guerra v. Barr, 974 F.3d 909, 911 (9th Cir. 2020)

(citation omitted); and deny the petition.

Petitioners’ opening brief states that they challenge two orders of the BIA:

“its decision to ignore . . . Petitioners’ properly raised interlocutory appeal [from

denial of their motion for consolidation,] dated January 15, 2020,” and “its

decision on the merits[,] dated September 15, 2020.” But that is not quite right.

The BIA never decided the merits of Petitioners’ non-removal petition. Its

September 15 decision concerned their “appeal from [the IJ’s] . . . den[ial] [of]

their motion for continuance.” Indeed, the Board noted that Petitioners “did not

appeal the merits of the [IJ’s] . . . decision[] [and] thus . . . ha[d] waived appeal of

the denial of their applications for asylum and withholding of removal under

1 Rosario Luna Flores is joined by her two sons, Erik Esteban Lopez Luna and Cristofer Lopez Luna; her sister-in-law, Melva Eliu Bravo Morales; and her niece, Estrella Guadalupe Luna Bravo. 2 sections 208 and 241(b)(3) of the Immigration and Nationality Act, . . .

respectively, as well as the denial of their request for protection pursuant to the

United States’ obligations under the Convention Against Torture.” See In re R-A-

M-, 25 I. & N. Dec. 657, 658 n.2 (BIA 2012) (explaining that arguments not raised

on appeal to the BIA may be deemed forfeited).

Petitioners did, to be fair, make some effort to dispute the IJ’s decision on

the merits before the BIA. In addition to their interlocutory appeal from denial of

their motion for consolidation, they filed a separate form indicating that they

wished to “appeal from the [IJ’s] decision in [a] merits proceeding[] . . . dated

12/05/2019.” To that end, they asserted that the IJ had “den[ied] [them, inter alia,]

a reasonable request for consolidation . . . despite overwhelming good cause[,] . . .

[their] right to a full and fair hearing[,] . . . [their] right to present evidence[,] . . .

[and] the guarantees of procedural due process.” However, Petitioners also

checked a box indicating that they “intend[ed] to file a separate written brief or

statement after filing this Notice of Appeal.” A box immediately following this

item, captioned with a “Warning” in bold and all caps and flagged with a large

exclamation point, stated that checking that box meant Petitioners “w[ould] be

expected to file a written brief or statement”—and that failure to do so would

empower the “Board [to] summarily dismiss [the] appeal.” The BIA found that

3 Petitioners did in fact fail to file a brief or statement in support of their appeal, and

they do not disagree.

“A single Board member or panel may summarily dismiss any appeal . . . in

which . . . [the petitioner] indicates on Form EOIR-26 . . . that he or she will file a

brief or statement in support of the appeal and, thereafter, does not file such brief

or statement . . . within the time set for filing.” Nolasco-Amaya v. Garland,

14 F.4th 1007, 1012 (9th Cir. 2021) (quoting 8 C.F.R. § 1003.1(d)(2)(i)). It is

undisputed that Petitioners have failed to comply with Form EOIR-26. Although

we reserve the right to “review de novo” the question of “whether [any] summary

dismissal violated a petitioner’s due process rights,” id., the open-textured grounds

of appeal listed on Petitioners’ form fall short of the specificity required under our

case law. Compare Rojas-Garcia v. Ashcroft, 339 F.3d 814, 820–21 (9th Cir.

2003) (denying a petition where petitioner “did not provide ‘supporting authority’

on any question of law presented[,] . . . . articulate how the IJ allegedly violated the

pre-trial order [at issue in that case,] []or . . . specify what evidence was

erroneously admitted as hearsay”), and Toquero v. INS, 956 F.2d 193, 196 (9th Cir.

1992) (“While the Notice correctly focused on the issue in contention, it did not

indicate which facts were in contention and how the IJ misinterpreted the

evidence.”), with Casas-Chavez v. INS, 300 F.3d 1088, 1091 (9th Cir. 2002)

(remanding to the BIA where “[p]etitioners[’] [notice had] directed the BIA’s

4 attention to specific portions of the immigration judge’s opinion as well as to

evidence supporting their interpretation that the [IJ] erred in not suspending

deportation proceedings”). We further conclude that Petitioners’ opening brief,

which restates the vague allegations presented to the Board, does not state a

substantial violation of their due process rights. Accordingly, we deny their

petition for review.

DENIED.