Ismael Cazares Cobian v. William Barr ( 2021 )

UNITED STATES COURT OF APPEALS FILED
FOR THE NINTH CIRCUIT SEP 16 2021
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
ISMAEL CAZARES COBIAN, No. 14-70701
Petitioner, Agency No. A077-369-673
v.
ORDER
MERRICK B. GARLAND, Attorney
General,
Respondent.
Before: GOULD, BEA, and FRIEDLAND, Circuit Judges.
The petition for panel rehearing is GRANTED. The Memorandum
Disposition filed on September 16, 2019, is WITHDRAWN and replaced with a
superseding Memorandum Disposition filed concurrently with this order. With
this superseding disposition, the petition for rehearing en banc is DENIED as
moot. Future petitions for rehearing will be permitted under the deadlines outlined
in Federal Rules of Appellate Procedure 35(c) and 40(a)(1).
IT IS SO ORDERED.
NOT FOR PUBLICATION FILED
UNITED STATES COURT OF APPEALS SEP 16 2021
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
ISMAEL CAZARES COBIAN, No. 14-70701
Petitioner, Agency No. A077-369-673
v.
MEMORANDUM*
MERRICK B. GARLAND, Attorney
General,
Respondent.
On Petition for Review of an Order of the
Board of Immigration Appeals
Submitted September 12, 2019**
Submission Withdrawn November 18, 2019
Resubmitted September 16, 2021
San Francisco, California
Before: GOULD, BEA, and FRIEDLAND, Circuit Judges.
Petitioner Ismael Cazares Cobian appeals the Board of Immigration
Appeals’ (“BIA”) decision affirming the Immigration Judge’s (“IJ”) order of
removal. We have jurisdiction under 8 U.S.C. § 1252(a). We grant his motion to
*
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).
remand to the BIA for consideration of cancellation of removal. We dismiss for
lack of jurisdiction his motion to remand to the BIA for consideration of
administrative closure. And, reviewing de novo, Altamirano v. Gonzales, 427 F.3d
586, 591 (9th Cir. 2005), we deny his petition for review.
Cazares Cobian is a Mexican citizen who became a legal permanent resident
of the United States (“LPR”) on November 1, 2002. On August 7, 2008, when
Cazares Cobian was trying to cross from Mexico to the United States in his car,
authorities asked him to go to secondary inspection. There, upon questioning,
Cazares Cobian admitted to attempting to smuggle a passenger in his car into the
United States without proper documents. He contends that, during his questioning,
the immigration officer did not advise him of his rights under 8 C.F.R. § 287.3(c).
On August 8, 2008, or five years and nine months after Cazares Cobian
became an LPR, the government served him with a Notice to Appear (“NTA”) that
omitted the time, date, and place of his removal hearing. While Cazares Cobian’s
immigration proceedings were pending from 2012 to 2014, BIA caselaw stipulated
that service of an NTA which omits the time, date, and location of a noncitizen’s
removal hearing triggered the stop-time rule that pauses continuous residency in
the United States for purposes of cancellation of removal. Matter of Camarillo, 25
I. & N. Dec. 644, 651 (BIA 2011). Under this law, Cazares Cobian had not yet
accrued the seven years of continuous residency required for cancellation of
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removal, so he did not seek such relief from the IJ or BIA.
Cazares Cobian requests remand to the BIA for consideration of cancellation
of removal. Although he did not seek such relief from the IJ or BIA,
administrative and prudential exhaustion are not required for this issue because
cancellation of removal was so entirely foreclosed to Cazares Cobian during his
immigration proceedings that resort to the agency would have been futile. See id.;
Alvarado v. Holder, 759 F.3d 1121, 1128–30 (9th Cir. 2014); Sun v. Ashcroft, 370
F.3d 932, 942–43 (9th Cir. 2004). And cancellation of removal law has changed—
an NTA must contain the time, date, and place of a noncitizen’s removal hearing to
trigger the stop-time rule. Niz-Chavez v. Garland, --- U.S. ---, 141 S. Ct. 1474,
1479–82 (2021); Pereira v. Sessions, --- U.S. ---, 138 S. Ct. 2105, 2109 (2018);
Lopez v. Garland, 998 F.3d 851, 852 (9th Cir. 2021) (en banc). As such, we grant
Cazares Cobian’s motion for remand with regard to cancellation of removal.
Also, Cazares Cobian requests remand to the BIA for consideration of
administrative closure. But he did not seek such relief from the IJ or BIA, even
though it was available during his immigration proceedings. See Garcia-DeLeon
v. Garland, 999 F.3d 986, 989 (6th Cir. 2021) (describing the availability of
administrative closure for at least three decades until 2018); Matter of Avetisyan,
25 I. & N. Dec. 688, 692 (BIA 2012), overruled by Matter of Castro-Tum, 27 I. &
N. Dec. 271, 272 (A.G. 2018), overruled by Matter of Cruz-Valdez, 28 I. & N.
3
Dec. 326 (A.G. 2021). For this reason, Cazares Cobian did not exhaust his
administrative closure claim and we lack jurisdiction to consider it. See Barron v.
Ashcroft, 358 F.3d 674, 678 (9th Cir. 2004).
Finally, Cazares Cobian petitions for review of the BIA’s decision, arguing
that the statements he made during questioning at secondary inspection should
have been suppressed because he was not advised of his rights. Cazares Cobian’s
statements during his questioning at secondary inspection were admissible in his
immigration proceedings. Because Cazares Cobian had not yet been placed in
formal immigration proceedings, the immigration officials were not required under
8 C.F.R. § 287.3(c) to inform him of his right to counsel. Samayoa-Martinez v.
Holder, 558 F.3d 897, 901–02 (9th Cir. 2009).
The admission of Cazares Cobian’s statements did not violate his Fifth
Amendment right against self-incrimination. Noncitizens are entitled to the same
protections against self-incrimination as citizens. United States v. Balsys, 524 U.S.
666, 671 (1998). However, an official’s failure to give a Miranda-style warning
does not preclude the use of statements obtained during a custodial interrogation in
a removal proceeding. See United States v. Solano-Godines, 120 F.3d 957, 960
(9th Cir. 1997).
MOTION TO REMAND WITH REGARD TO CANCELLATION OF
REMOVAL GRANTED. MOTION TO REMAND WITH REGARD TO
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ADMINISTRATIVE CLOSURE DISMISSED. PETITION DISMISSED IN
PART AND DENIED IN PART.
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