Nicandro Sanchez-Patron v. Merrick Garland ( 2022 )

NOT FOR PUBLICATION FILED
UNITED STATES COURT OF APPEALS JUN 9 2022
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
NICANDRO SANCHEZ-PATRON, No. 21-70950
Petitioner, Agency No. A072-868-338
v.
MEMORANDUM*
MERRICK B. GARLAND, Attorney
General,
Respondent.
On Petition for Review of an Order of the
Board of Immigration Appeals
Submitted June 7, 2022**
Pasadena, California
Before: M. SMITH, BADE, and VANDYKE, Circuit Judges.
Nicandro Sanchez-Patron1 petitions for review of the Board of Immigration
Appeals’ (“BIA”) dismissal of his appeal from an Immigration Judge’s (“IJ”)
*
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).
1
In a declaration attached to his motion to reopen, Sanchez-Patron stated
that his name is “Ricardo” and that he has two aliases, “Nicandro Sanchez Patrón”
and “Ricardo Aquino.”
decision denying his motion to reopen a deportation order from 1994. We have
jurisdiction under 8 U.S.C. § 1252, and we deny the petition.
1. We first consider the government’s request that we take judicial notice of
a decision reinstating a September 12, 1994 deportation order against “Ricardo
Sanchez-Patron aka: Sanchez-Patron, Nicando,” in file number “207 471 236” (the
“reinstatement order”). We may take judicial notice of the agency’s own records,
even when those records were not part of the administrative record in proceedings
before the BIA. See Lising v. INS, 124 F.3d 996, 998–99 (9th Cir. 1997); Dent v.
Holder, 627 F.3d 365, 370–71 (9th Cir. 2010). We therefore grant the
government’s motion for judicial notice.
Sanchez-Patron resists this result, but we find none of his arguments
persuasive. Sanchez-Patron first contends that the reinstatement order should not
be considered because it “is not part of the administrative record.” But, as already
explained, the agency’s own records are subject to judicial notice regardless of
whether they are in the administrative record. See id.Sanchez-Patron’s related argument—that judicial notice is improper because
the IJ and BIA “did not base their decisions on any reinstatement of removal
order”—fares no better because it is squarely foreclosed by Gutierrez-Zavala v.
Garland, 32 F.4th 806, 809–10 (9th Cir. 2022) (taking judicial notice of an extra-
record reinstatement order even though the BIA did not rely on that order in
2
denying the petitioner’s motion to reopen).
Sanchez-Patron next suggests that there is not enough evidence in the record
to establish that he is the individual named in the reinstatement order, but this
suggestion strains credulity. Sanchez-Patron previously admitted that he “has been
known by two aliases,” including “Nicandro Sanchez Patrón,” and that he “has two
A#s,” which he identified as “072 868 338” and “207 471 236.” The reinstatement
order references Sanchez-Patron’s actual name and alias, lists one of his two A-file
numbers, and reinstates a September 12, 1994 deportation order entered in San
Diego, California, which matches the deportation order in the administrative
record. We thus have no doubt that the reinstatement order pertains to Sanchez-
Patron.
Sanchez-Patron further insists that the reinstatement order “was never
properly served” on him or his counsel. But as the government points out, the
reinstatement order indicates that Sanchez-Patron “[d]ecline[d] to sign” it, and
nothing about Sanchez-Patron’s refusal to sign and acknowledge receipt of the
order demonstrates that the government did not properly serve the document. Cf.
Gutierrez-Zavala, 32 F.4th at 809 n.1; see also Kohli v. Gonzales, 473 F.3d 1061,
1068 (9th Cir. 2007) (“[There is a] well established principle of federal law that
administrative agencies are entitled to a presumption that they ‘act properly and
according to law.’ ‘In the absence of clear evidence to the contrary, courts
3
presume that public officers properly discharge their duties[.]’” (citations
omitted)). Moreover, Sanchez-Patron does not otherwise identify evidence
suggesting that he was unaware of the reinstatement order. See Gutierrez-Zavala,
32 F.4th at 809 n.1; Carrillo-Gonzalez v. INS, 353 F.3d 1077, 1079 (9th Cir. 2003)
(finding that an argument by counsel “does not constitute evidence”). We
therefore grant the government’s motion and take judicial notice of the
reinstatement order.
2. The reinstatement order indicates that the Department of Homeland
Security reinstated the 1994 deportation order against Sanchez-Patron on July 7,
2020. A few weeks later, Sanchez-Patron moved to reopen the 1994 deportation
order. Because a prior removal order that has been reinstated “is not subject to
being reopened or reviewed,” 8 U.S.C. § 1231(a)(5), the BIA lacked jurisdiction to
consider Sanchez-Patron’s motion to reopen. See Gutierrez-Zavala, 32 F.4th at
808–10; Cuenca v. Barr, 956 F.3d 1079, 1088 (9th Cir. 2020). We therefore deny
the petition for review.2 See Gutierrez-Zavala, 32 F.4th at 811 (“When the BIA
denies a motion to reopen a reinstated removal order on grounds other than a lack
of jurisdiction, we may deny a petition challenging that ruling based on the BIA’s
2
Because this issue is dispositive, we need not address the parties’
remaining arguments. INS v. Bagamasbad, 429 U.S. 24, 25 (1976) (per curiam)
(“As a general rule courts and agencies are not required to make findings on issues
the decision of which is unnecessary to the results they reach.”).
4
lack of jurisdiction under 8 U.S.C. § 1231(a)(5).”).
PETITION FOR REVIEW DENIED.
5