Oscar Estrada v. Attorney General United States ( 2021 )

NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
_______________
No. 20-1700
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OSCAR GARCIA ESTRADA,
Petitioner
v.
ATTORNEY GENERAL OF THE UNITED STATES OF AMERICA
_______________
On Petition for Review of a Final Order
of the Board of Immigration Appeals
(No. A205-754-912)
Immigration Judge: Alberto J. Riefkohl
_______________
Submitted Under Third Circuit L.A.R. 34.1(a)
on January 25, 2021.
Before: RESTREPO, BIBAS, and PORTER, Circuit Judges
(Filed: January 25, 2021)
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OPINION *
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BIBAS, Circuit Judge.
In 2004, Oscar Garcia Estrada, a Mexican national, illegally entered the United States.
In 2013, the Government tried to deport him. He applied for asylum, withholding of re-
moval, and relief under the Convention Against Torture.
*
This disposition is not an opinion of the full Court and, under I.O.P. 5.7, is not binding
precedent.
Garcia Estrada’s original application, in 2016, was sparse, including only his birth cer-
tificate, his passport, and two general articles about crime in Veracruz, Mexico. So an im-
migration judge gave him a year to gather more evidence. When he missed that deadline,
the immigration judge gave him another year. But he missed that deadline too. Finally,
after two years, the immigration judge “consider[ed] the application for asylum aban-
doned” and ordered him deported. AR 122.
Garcia Estrada appealed to the Board of Immigration Appeals. He argued that the im-
migration judge should not have treated his application as abandoned, but instead should
have considered the case based on the limited evidence before him. The Board disagreed
and, in 2019, dismissed the appeal.
Two months later, Garcia Estrada moved to reopen his case. This time, he attached fifty
pages of supporting evidence. But in 2020, the Board denied his motion because he never
explained why he had not submitted the evidence earlier. Garcia Estrada petitions for re-
view of that second decision. We will deny the petition.
First, Garcia Estrada argues that the Board did not consider his new evidence. But it
was not allowed to. “A motion to reopen proceedings shall not be granted unless it appears
to the Board that [the] evidence sought to be offered is material and was not available and
could not have been discovered or presented at the former hearing . . . .” 8 C.F.R.
§ 1003.2(c)(1) (2020). Because he never claimed that he could not have presented the evi-
dence earlier, the Board could not have reopened his case.
Second, Garcia Estrada asserts that by ignoring his evidence, the Board violated due
process. We disagree. As he admits, he bears the burden of proving prejudice. But under
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§ 1003.2(c)(1), the evidence could not have helped him because it was untimely. So he
suffered no prejudice.
Finally, Garcia Estrada argues that the immigration judge should at least have consid-
ered his application based on the old evidence, rather than reject the application as aban-
doned. Even if he has a point, he has made this argument too late. The Board rejected this
argument in its first decision, in August 2019. He had thirty days to petition for review of
that decision. 8 U.S.C. § 1252(b)(1). He did not. Instead, he waited almost a year, after the
Board ruled on different arguments made in his motion to reopen, and petitioned for review
of the 2020 decision. By then, his thirty-day window to challenge the 2019 ruling had long
expired. And “filing a motion to reconsider does not toll the thirty-day period for seeking
review of the earlier merits decision.” Castro v. Att’y Gen of U.S., 671 F.3d 356, 364 (3d
Cir. 2012). So his challenge to the 2019 decision is untimely. We will thus deny the petition
for review.
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