Yobani Carlos-Rivera v. Merrick Garland

• Court: Court of Appeals for the Ninth Circuit
• Decided: June 27, 2022
• Docket: 20-73281
• Status: Unpublished

Opinion

FILED NOT FOR PUBLICATION JUN 27 2022 UNITED STATES COURT OF APPEALS MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS

FOR THE NINTH CIRCUIT

YOBANI CARLOS-RIVERA, No. 20-73281

Petitioner, Agency No. A092-572-896

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

Respondent.

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

Submitted June 10, 2022** Seattle, Washington

Before: IKUTA and MILLER, Circuit Judges, and PREGERSON,*** District Judge.

* 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 Dean D. Pregerson, United States District Judge for the Central District of California, sitting by designation. Yobani Carlos-Rivera seeks review of a decision of the Board of

Immigration Appeals (BIA) declining to sua sponte reopen his removal

proceedings or to grant equitable tolling of the deadline. Carlos-Rivera has not

shown that this decision “rel[ied] on a constitutionally or legally erroneous

premise.” Bonilla v. Lynch, 840 F.3d 575, 592 (9th Cir. 2016). Nothing in the

record indicates that the BIA based its decision on the faulty assumption that

Carlos-Rivera would be ineligible for relief if the proceedings were reopened. Nor

did the BIA err in rejecting Carlos-Rivera’s argument that he could not have filed

his motion to reopen earlier because of the “departure bar” in 8 C.F.R. § 1003.2(d).

Rather, the BIA correctly noted that Carlos-Rivera did not file his motion until

eight years after our 2011 ruling that no such restriction applies. See Reyes-Torres

v. Holder, 645 F.3d 1073, 1076–77 (9th Cir. 2011). We also reject Carlos-Rivera’s

argument that the BIA erred by not recognizing that his 1993 deportation order was

based on an offense that was subsequently determined not to be an aggravated

felony. See United States v. Rivera-Sanchez, 247 F.3d 905, 909 (9th Cir. 2001).

The BIA recognized that Rivera-Sanchez constituted a fundamental change in the

law but lawfully exercised its discretion to hold that neither equitable tolling nor

sua sponte reopening was warranted based on the totality of the circumstances. See

Lona v. Barr, 958 F.3d 1224, 1230 (9th Cir 2020); Bonilla, 840 F.3d at 585.

2 Finally, Carlos-Rivera has not shown that the BIA erred by departing from its own

established policy. See Matter of G-C-L-, 23 I. & N. Dec. 359, 362 (BIA 2002).

Therefore, we lack jurisdiction to review the BIA’s denial of Carlos-Rivera’s

motion. See Bonilla, 840 F.3d at 585.

We also lack jurisdiction to consider Carlos-Rivera’s argument that the 1993

deportation order entered against him was illegal on the ground that it was not

supported by a judgment of conviction. Carlos-Rivera failed to raise this issue to

the BIA and no exception to the exhaustion requirement applies. See 8 U.S.C.

§ 1252(d); see also Sola v. Holder, 720 F.3d 1134, 1135 (9th Cir. 2013) (per

curiam).

PETITION DISMISSED.