Ruiz-Sanchez v. Garland

• Court: Court of Appeals for the Ninth Circuit
• Decided: September 10, 2024
• Docket: 21-1328
• Status: Unpublished

Opinion

NOT FOR PUBLICATION FILED UNITED STATES COURT OF APPEALS SEP 10 2024 MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS FOR THE NINTH CIRCUIT

URVANO RUIZ-SANCHEZ, No. 21-1328 Agency No. Petitioner, A093-492-459 v. MEMORANDUM* MERRICK B. GARLAND, Attorney General,

Respondent.

URVANO RUIZ-SANCHEZ, No. 22-1388 Agency No. Petitioner, A093-492-459 v.

MERRICK B. GARLAND, Attorney General,

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

Submitted August 23, 2024**

* 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). Portland, Oregon

Before: WALLACH, CHRISTEN, and HURWITZ, Circuit Judges.***

Urvano Ruiz-Sanchez, a native and citizen of Mexico who has lived in the

United States since 1980, petitions for review of two Board of Immigration

Appeals (BIA) decisions. The first decision dismissed Ruiz-Sanchez’s appeal of

an order from an Immigration Judge (IJ) denying his applications for withholding

of removal and protection under the Convention Against Torture. The second BIA

decision dismissed Ruiz-Sanchez’s motion to reconsider the finding of

removability. We have jurisdiction under 8 U.S.C. § 1252(a). We review the

agency’s legal conclusions de novo and factual findings for substantial evidence.

See Ruiz-Colmenares v. Garland, 25 F.4th 742, 748 (9th Cir. 2022). As the parties

are familiar with the facts, we do not recount them here. We grant the petition.

In 2018, Ruiz-Sanchez was convicted of possession of a controlled

substance with intent to deliver, in violation of Idaho Code § 37-2732(a). The

Department of Homeland Security (DHS) then initiated removal proceedings

against Ruiz-Sanchez by sending him a Notice to Appear (NTA) that lacked date

and time information. After an IJ found him removable, Ruiz-Sanchez argued for

the first time on appeal to the BIA that the absence of the date and time for his

*** The Honorable Evan J. Wallach, United States Senior Circuit Judge for the Federal Circuit, sitting by designation.

2 22-1388 hearing on the initial NTA required termination of the proceedings. Ruiz-Sanchez

argued termination was warranted both because the statutorily defective NTA

deprived the immigration court of subject matter jurisdiction, and because it

violated the claim-processing rule in 8 U.S.C. § 1229(a)(1).

The BIA correctly concluded that a statutorily deficient NTA does not

deprive the immigration court of subject matter jurisdiction. United States v.

Bastide-Hernandez, 39 F.4th 1187, 1190–94 (9th Cir. 2022) (en banc).1 But the

BIA did not address Ruiz-Sanchez’s claim-processing argument. For that reason,

we cannot address it in the first instance. See Budiono v. Lynch, 837 F.3d 1042,

1046 (9th Cir. 2016) (“Our review is limited to those grounds explicitly relied

upon by the Board.”); Abebe v. Gonzales, 432 F.3d 1037, 1041 (9th Cir. 2005) (en

banc).

We also “remand a case to an agency for decision of a matter that statutes

place primarily in agency hands,” so that “[t]he agency can bring its expertise to

bear upon the matter.” INS v. Orlando Ventura, 537 U.S. 12, 16–17 (2002); see

also Kalilu v. Mukasey, 548 F.3d 1215, 1217 (9th Cir. 2008) (remanding to the

1 Although the en banc decision in Bastide-Hernandez issued after the BIA’s November 15, 2021 ruling, the BIA’s reasoning aligned with this holding, and it cited to consistent statements in United States v. Bastide-Hernandez, 986 F.3d 1245, 1248 (9th Cir. 2021) (vacated) and Aguilar Fermin v. Barr, 958 F.3d 887, 893–95 (9th Cir. 2020).

3 22-1388 BIA to consider in the first instance the impact of subsequently issued BIA

standards). In Matter of Fernandes, the BIA recognized that the time and place

requirement in 8 U.S.C. § 1229(a)(1) is a mandatory claim-processing rule, which

if raised in a timely objection, must be enforced. 28 I. & N. Dec. 605, 608

(BIA 2022). Recent Ninth Circuit and Supreme Court authority is consistent with

Fernandes. See Campos-Chaves v. Garland, 144 S. Ct. 1637, 1649 (2024)

(recognizing that initial NTAs lacking time and place information fail to satisfy

8 U.S.C. § 1229(a)(1)); id. at 1651 (describing the importance of this statutory

requirement and the process to “raise issues regarding incomplete notice”);

Bastide-Hernandez, 39 F.4th at 1193 n.9 (noting that “the supplement of a notice

of hearing would not cure any NTA deficiencies under § 1229(a)”). We therefore

grant the petition for review and remand for the BIA to consider in the first

instance whether Ruiz-Sanchez’s objection to the NTA was timely, and if so, to

address its merits in light of Fernandes, Bastide-Hernandez, and Campos-Chaves.

See Suate-Orellana v. Garland, 101 F.4th 624, 632 (9th Cir. 2024).2

GRANTED.

2 We deny Ruiz-Sanchez’s motion for judicial notice because it relates to the removability issue. Dkt. No. 36 in 21-1328; Dkt. No. 14 in 22-1388. Ruiz-Sanchez’s removability argument is foreclosed by Tellez-Ramirez v. Garland, 87 F.4th 424 (9th Cir. 2023), which affirmed removability for an aggravated felony based on a conviction for Idaho Code § 37-2732(a)(1)—the same offense at issue in this case.

4 22-1388