Hussain Al-Jabari v. Merrick Garland ( 2023 )

NOT FOR PUBLICATION FILED
UNITED STATES COURT OF APPEALS FEB 14 2023
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
HUSSAIN JIYAD AL-JABARI, No. 18-73155
Petitioner, Agency No. A071-680-533
v.
MEMORANDUM*
MERRICK B. GARLAND, Attorney
General,
Respondent.
On Petition for Review of an Order of the
Board of Immigration Appeals
Submitted February 10, 2023**
Phoenix, Arizona
Before: GRABER, CLIFTON, and CHRISTEN, Circuit Judges.
Petitioner Hussain Jiyad Al-Jabari, a native and citizen of Iraq, timely
petitions for review of the Board of Immigration Appeals’ (“BIA”) order
dismissing his appeal from an Immigration Judge’s (“IJ”) denial of a motion to
reopen. We have jurisdiction under 8 U.S.C. § 1252. We review the denial of a
*
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).
motion to reopen for abuse of discretion and review legal questions de novo.
Bonilla v. Lynch, 840 F.3d 575, 581 (9th Cir. 2016). Where the BIA adopts the
reasoning of the IJ and adds some of its own reasoning, we review both decisions.
Nehad v. Mukasey, 535 F.3d 962, 966 (9th Cir. 2008). We deny the petition in
part and dismiss it in part.
1. The government served Petitioner with an initial notice to appear that
omitted the date and time of his hearing. Petitioner’s initial notice was later
supplemented with that missing information. Petitioner contends that the agency
lacked authority to act because the relevant regulations allowing that procedure are
ultra vires and exceed the scope of the authority granted by Congress. In the
alternative, he maintains that the IJ lacked jurisdiction. In United States v.
Bastide-Hernandez, 39 F.4th 1187 (9th Cir. 2022) (en banc), ”), cert. denied, No.
22-6281, 2023 WL 350056 (U.S. Jan. 23, 2023), we held that an undated notice to
appear that is later supplemented by a notice of hearing does not deprive the
agency of authority to act. 39 F.4th at 1193. We reached that conclusion by
relying on the statute, not the regulations. Id. at 1191–93. We also held that the
omission of the date and time of the hearing on the initial notice to appear does not
divest the IJ of subject-matter jurisdiction. 39 F.4th at 1193 & n.7. Thus, both of
Petitioner’s arguments fail.
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2. The BIA did not abuse its discretion by concluding that Petitioner’s
motion to reopen was time-barred and number-barred. Petitioner appeals from the
denial of his second motion to reopen, which was filed more than six years after
the final administrative order of removal. In general, a petitioner may file only one
motion to reopen proceedings. 8 U.S.C. § 1229a(c)(7)(A). That motion must be
filed within ninety days of the final order of removal. 8 U.S.C.
§ 1229a(c)(7)(C)(i).
There are limited exceptions to those requirements. 8 U.S.C.
§ 1229a(c)(7)(C)(ii); 8 C.F.R. § 1003.2(c)(3). But Petitioner does not argue that
any statutory or regulatory exception applies. Instead, he maintains that his motion
was timely because it was filed within ninety days of the Supreme Court’s decision
in Pereira v. Sessions, 138 S. Ct. 2105 (2018). Equitable tolling of the statutory
deadlines and numerical limits on motions to reopen for “claims based on changes
in the law are not unheard of, nor are they prohibited.” Lona v. Barr, 958 F.3d
1225, 1230–31 (9th Cir. 2020). But here, Petitioner’s specific argument is that he
may raise a jurisdictional argument at any time. As we explained in Bastide-
Hernandez, Pereira did not implicate the agency’s authority to act or divest the IJ
of jurisdiction, so this argument misses the mark. Moreover, Petitioner failed to
demonstrate the existence of an extraordinary circumstance.
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3. To the extent that Petitioner argues that the BIA erred by declining to
exercise its sua sponte authority to reopen, we dismiss the petition. Our
jurisdiction to review BIA decisions denying sua sponte reopening is limited to
“reviewing the reasoning behind the decisions for legal or constitutional error.”
Bonilla, 840 F.3d at 588. Because the BIA did not commit legal or constitutional
error, we lack jurisdiction. See Lona, 958 F.3d at 1235 (“[T]here is nothing left for
us to review.”).
Petition DENIED in part and DISMISSED in part.
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