Valenzuela Rivera v. Garland

• Court: Court of Appeals for the Ninth Circuit
• Decided: March 30, 2023
• Docket: 21-1091
• Status: Unpublished

Opinion

NOT FOR PUBLICATION FILED UNITED STATES COURT OF APPEALS MAR 30 2023 MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS FOR THE NINTH CIRCUIT

Sixto Valenzuela Rivera, No. 21-1091

Petitioner, Agency No. A087-901-366

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

Respondent.

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

Submitted March 28, 2023** San Francisco, California

Before: M. SMITH and OWENS, Circuit Judges, and RODRIGUEZ,*** District Judge.

Sixto Valenzuela Rivera (“Valenzuela”), a native and citizen of Mexico,

petitions for review of the Board of Appeals’ (“BIA”) decision summarily

dismissing his appeal and denying his motion to remand. We review for abuse

* 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 Xavier Rodriguez, United States District Judge for the Western District of Texas, sitting by designation. of discretion both the BIA’s summary dismissal of an appeal and its denial of a

motion to remand. Nolasco-Amaya v. Garland, 14 F.4th 1007, 1012 (9th Cir.

2021); Taggar v. Holder, 736 F.3d 886, 889 (9th Cir. 2013). As the parties are

familiar with the facts, we do not recount them here. We deny in part and

dismiss in part the petition.

The BIA acted within its discretion by summarily dismissing

Valenzuela’s appeal of the immigration judge’s (“IJ”) decision. The BIA did

not abuse its discretion by summarily dismissing on the ground that

Valenzuela’s Notice of Appeal, which was prepared with the assistance of

counsel, failed to meaningfully apprise the BIA of the reasons for his challenge

to the IJ’s decision. See 8 C.F.R. § 1003.1(d)(2)(i)(A); Nolasco-Amaya, 14

F.4th at 1012 (noting that under the BIA’s “strict specificity requirement when

evaluating the notice of reasons for appeal,” “[a] noncitizen must provide

meaningful guidance to the BIA by informing it of the issues contested on

appeal” and include supporting authority “[w]here a question of law is

presented” (citations and internal quotation marks omitted)). The BIA also did

not abuse its discretion by summarily dismissing on the ground that Valenzuela

failed to file a separate written brief or statement after he checked the box on his

Notice of Appeal indicating that he intended to do so, and he did not reasonably

explain such a failure, even given his motion to remand. See 8 C.F.R.

§ 1003.1(d)(2)(i)(E).

In addition, the BIA acted within its discretion by denying Valenzuela’s

2 21-1091 motion to remand, which was based on excerpts from a book concerning the

danger and harm deportees from the United States face when returned to

Mexico. The BIA did not abuse its discretion in determining that, although the

book may have been published after his removal hearing, Valenzuela had not

demonstrated that the factual evidence referenced in the book was unavailable

for his hearing. See 8 C.F.R. § 1003.2(c)(1) (stating that a motion to reopen

“shall not be granted unless it appears to the Board that evidence sought to be

offered is material and was not available and could not have been discovered or

presented at the former hearing”); see also Angov v. Lynch, 788 F.3d 893, 897

(9th Cir. 2015) (stating that a motion to remand is treated as having the same

requirements as a motion to reopen). The BIA also did not abuse its discretion

in determining that Valenzuela had not met his heavy burden of showing that if

the proceedings were remanded, the book would likely change the result in his

case. See Shin v. Mukasey, 547 F.3d 1019, 1025 (9th Cir. 2008) (stating that

applicants “who seek to remand or reopen proceedings to pursue relief bear a

‘heavy burden’ of proving that, if proceedings were reopened, the new evidence

would likely change the result in the case” (citation omitted)).

Finally, Valenzuela failed to exhaust his argument that the BIA

improperly rejected his motion to terminate for lack of jurisdiction due to his

failure to submit a filing fee. See Dawson v. Garland, 998 F.3d 876, 880 n.2

(9th Cir. 2021). Therefore, we dismiss this portion of Valenzuela’s petition.

The stay of removal remains in place until the mandate issues.

3 21-1091 PETITION DENIED IN PART AND DISMISSED IN PART.

4 21-1091