Cerrato-Maradiaga v. Garland ( 2023 )

Case: 21-534, 02/22/2023, DktEntry: 43.1, Page 1 of 4
NOT FOR PUBLICATION FILED
UNITED STATES COURT OF APPEALS FEB 22 2023
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
Alex Cerrato-Maradiaga, Nos. 21-453
21-534
Petitioner,
Agency No. A029-154-257
v.
Merrick B. Garland, U.S. Attorney MEMORANDUM*
General,
Respondent.
On Petition for Review of Orders of an
Immigration Judge
Submitted February 16, 2023**
San Francisco, California
Before: S.R. THOMAS, MILLER, and SANCHEZ, Circuit Judges.
Alex Cerrato-Maradiaga, a native and citizen of Honduras, petitions for
review of an immigration judge’s orders denying Cerrato’s motions to reissue a
decision affirming an asylum officer’s determination that Cerrato did not have a
reasonable fear of persecution or torture in Honduras. We have jurisdiction
under 8 U.S.C. § 1252, and we deny the petitions.
*
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).
Case: 21-534, 02/22/2023, DktEntry: 43.1, Page 2 of 4
“A motion to reissue is treated as a motion to reopen.” Coyt v. Holder,
593 F.3d 902, 904 n.1 (9th Cir. 2010) (quoting Chen v. United States Att’y Gen.,
502 F.3d 73, 75 (2d Cir. 2007) (per curiam)). We review the denial of a motion
to reopen for abuse of discretion and uphold the immigration judge’s decision
unless it is “arbitrary, irrational, or contrary to law.” Perez v. Mukasey, 516 F.3d
770, 773 (9th Cir. 2008) (quoting Singh v. INS, 295 F.3d 1037, 1039 (9th Cir.
2002)).
1. In his brief, Cerrato does not contest any aspect of the immigration
judge’s first decision. He has therefore abandoned any challenge to the denial of
his first motion to reissue. See Nguyen v. Barr, 983 F.3d 1099, 1102 (9th Cir.
2020).
2. Cerrato sought equitable exceptions to the time and number limits that
would otherwise bar his second motion. See 8 U.S.C. § 1229a(c)(7)(A), (C); 8
C.F.R. § 1003.23(b)(1). The immigration judge denied equitable tolling for two
reasons. First, the judge saw no authority for granting equitable tolling on
account of Cerrato’s alleged incompetency. Second, the judge observed that
Cerrato’s lawyer could have described Cerrato’s incompetency in his first
timely motion. Cerrato challenges the first reason but not the second. Because
either reason was an independent basis for the decision, Cerrato’s failure to
preserve any challenge to the second ground forecloses his claim. See Nguyen,
983 F.3d at 1102.
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In any event, the record does not suggest that the vital information
bearing on reissuance—Cerrato’s alleged incompetency during the period for
filing a petition—was unavailable to Cerrato’s lawyer despite due diligence or
because of circumstances beyond counsel’s control. See Perez-Camacho v.
Garland, 54 F.4th 597, 606 (9th Cir. 2022). The immigration judge did not
abuse his discretion in concluding that “counsel’s failure to investigate the
claimed primary reason for Respondent’s untimely petition” warranted denying
equitable tolling.
3. Cerrato asserts that the immigration judge violated his due process
rights by overlooking his arguments. To satisfy due process, the immigration
judge need not write a lengthy analysis of every contention but must “consider
the issues raised, and announce [the] decision in terms sufficient to enable a
reviewing court to perceive that [the judge] has heard and thought and not
merely reacted.” Najmabadi v. Holder, 597 F.3d 983, 990 (9th Cir. 2010)
(quoting Lopez v. Ashcroft, 366 F.3d 799, 807 n.6 (9th Cir. 2004)). The
immigration judge’s reasoning satisfied that requirement.
First, Cerrato argues that the immigration judge ignored his requests for a
finding of incompetency or a competency hearing. To the contrary, the
immigration judge grappled with Cerrato’s claim of incompetency at some
length. The judge acknowledged that, standing alone, Cerrato’s evidence might
have been persuasive but determined that the government’s evidence refuted it.
Although the judge did not expressly discuss Cerrato’s request for a hearing, his
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reasoning shows that he considered a hearing unnecessary given the evidence
against incompetency.
Second, Cerrato argues that the immigration judge ignored his declaration
that he was denied medical treatment and was wrongly accused of malingering.
That is incorrect. The immigration judge expressly referenced the declaration
and Cerrato’s statement that “he did not receive treatment” while in
immigration custody. The judge sufficiently explained why he discounted the
declaration: He found more persuasive the medical records showing that Cerrato
received medical attention and did not exhibit signs of psychosis.
Third, Cerrato objects to the immigration judge’s observation that Cerrato
neglected to submit his untimely petition, which could have supported his
claim. Cerrato contends that he did not prepare his petition by himself, so the
petition could not have demonstrated his incompetency. But his declaration says
only that he received “help filing the appeal.” It does not indicate whether
Cerrato played a role in its drafting. The immigration judge’s observation did
not misconstrue the record or violate due process.
The motions to stay removal are denied. (Case No. 21-453, Dkt. No. 4;
Case No. 21-543, Dkt. No. 2). The temporary stay of removal is lifted.
PETITIONS DENIED.
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