Alberto De Jesus-Fernandez Gue v. Merrick Garland ( 2021 )

NOT FOR PUBLICATION FILED
UNITED STATES COURT OF APPEALS AUG 26 2021
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
ALBERTO DE JESUS-FERNANDEZ No. 20-70737
GUERRA; ELSA AVILA DE GUERRA,
Agency Nos. A026-786-209
Petitioners, A026-786-208
v.
MEMORANDUM*
MERRICK B. GARLAND, Attorney
General,
Respondent.
On Petition for Review of an Order of the
Board of Immigration Appeals
Submitted August 17, 2021**
Before: SILVERMAN, CHRISTEN, and LEE, Circuit Judges.
Alberto De Jesus-Fernandez Guerra and Elsa Avila De Guerra, natives and
citizens of El Salvador, petition for review of the Board of Immigration Appeals’
(“BIA”) order denying their motion to reopen deportation proceedings. Our
jurisdiction is governed by 8 U.S.C. § 1252. We review for abuse of discretion the
*
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).
BIA’s denial of a motion to reopen. Perez v. Mukasey, 516 F.3d 770, 773 (9th Cir.
2008). We review de novo claims of due process violations in immigration
proceedings. Jiang v. Holder, 754 F.3d 733, 738 (9th Cir. 2014). We deny in part
and dismiss in part the petition for review.
The BIA did not abuse its discretion in denying petitioners’ motion to
reopen to apply for asylum and related relief as numerically barred and untimely,
where it was the second such motion and was filed thirty-four years after the order
of removal became final, and where petitioners did not establish that a statutory or
regulatory exception applies or that equitable tolling is warranted. See 8 U.S.C.
§ 1229a(c)(7)(A), (C)(i)-(ii); 8 C.F.R. § 1003.2(c)(3); Avagyan v. Holder, 646 F.3d
672, 679 (9th Cir. 2011) (deadline for filing motion to reopen can be equitably
tolled “when a petitioner is prevented from filing because of a deception, fraud, or
error, as long as the petitioner acts with due diligence” in discovering such
circumstances). Petitioners do not challenge the BIA’s determination that they are
not members of the class identified in Rojas v. Johnson, 305 F. Supp. 3d 1176(W.D. Wash. 2018). See Martinez-Serrano v. INS, 94 F.3d 1256, 1259-60 (9th Cir.
1996) (issues not specifically raised and argued in a party’s opening brief are
waived). We reject as unsupported by the record petitioners’ contention that the
BIA erred in not addressing their humanitarian asylum claim, where petitioners
argued they were entitled to humanitarian asylum as Rojas class members.
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The BIA did not abuse its discretion in denying petitioners’ motion to
reopen to apply for suspension of deportation, where petitioners provided no legal
support for their assertion that Pereira v. Sessions, 138 S. Ct. 2105 (2018), which
addresses a different statutory scheme, applies to their proceedings.
We lack jurisdiction to consider petitioners’ contentions regarding their
eligibility for relief under the Nicaraguan Adjustment and Central American Relief
Act. See Barron v. Ashcroft, 358 F.3d 674, 677-78 (9th Cir. 2004) (court lacks
jurisdiction to consider arguments not raised to BIA).
Petitioners’ contentions that the BIA failed to sufficiently explain its
decision, failed to address issues, violated their right to due process, or otherwise
erred in its analysis of their motion fail. See Najmabadi v. Holder, 597 F.3d 983,
990 (9th Cir. 2010) (the agency adequately considered evidence and sufficiently
announced its decision); Lata v. INS, 204 F.3d 1241, 1246 (9th Cir. 2000)
(requiring error to prevail on a due process claim).
PETITION FOR REVIEW DENIED in part; DISMISSED in part.
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