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 2023-03

Rafael Martinez Lara v. Merrick Garland ( 2023 )


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  •                                                                                  FILED
MAR 1 2023
NOT FOR PUBLICATION
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
RAFAEL MARTINEZ LARA,                        Nos. 17-72452
18-71713
Petitioner,                             19-71067
v.                                          Agency No. A075-477-110
MERRICK B. GARLAND, Attorney
General,                                     MEMORANDUM*
Respondent.
On Petitions for Review of an Order of the
Department of Homeland Security and
Orders of the Board of Immigration Appeals
Submitted February 17, 2023**
Pasadena, California
Before:      TASHIMA, HURWITZ, and BADE, Circuit Judges.
*
This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
**
The panel unanimously finds this case suitable for decision without oral
argument. See Fed. R. App. P. 34(a)(2)(C).
Rafael Martinez Lara, a native and citizen of Mexico, petitions for review of
the Department of Homeland Security’s (“DHS”) August 30, 2017, order
reinstating his February 6, 1998, removal order (petition No. 17-72452); the Board
of Immigration Appeals’ (“BIA”) order denying his motion to reopen removal
proceedings (petition No. 18-71713); and the BIA’s order denying his motion to
reconsider the denial of his motion to reopen (petition No. 19-71067). We have
jurisdiction under
    8 U.S.C. § 1252
    . We review for abuse of discretion the denial of
motions to reopen or reconsider. Mohammed v. Gonzales,
    400 F.3d 785
    , 791–92
(9th Cir. 2005). We deny the petitions for review.
1.     As to petition No. 17-72452, because Martinez Lara does not
challenge DHS’s compliance with the reinstatement regulations,
    8 C.F.R. § 241.8
    ,
or assert a gross miscarriage of justice in the underlying removal order, which are
the only bases for judicial review of a reinstatement order, see Morales de Soto v.
Lynch,
    824 F.3d 822
    , 825 (9th Cir. 2016); Garcia de Rincon v. DHS,
    539 F.3d 1133
    , 1138 (9th Cir. 2008), this issue is waived, see Lopez-Vasquez v. Holder,
    706 F.3d 1072
    , 1079–80 (9th Cir. 2013) (recognizing that issues not specifically raised
and argued in a party’s opening brief are waived). Thus, we deny the petition for
review.
2.     As to petition Nos. 18-71713 and 19-71067, the BIA lacked
2
jurisdiction to reopen Martinez Lara’s removal proceeding after reinstatement of
the underlying removal order. See
    8 U.S.C. § 1231
    (a)(5); Cuenca v. Barr,
    956 F.3d 1079
    , 1088 (9th Cir. 2020). Accordingly, we deny the petitions for review
because the BIA lacked jurisdiction to reopen, and we need not address the bases
of the BIA’s decisions. See Gutierrez-Zavala v. Garland,
    32 F.4th 806
    , 811 (9th
Cir. 2022) (“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 lack of jurisdiction under
    8 U.S.C. § 1231
    (a)(5).”);
see also Bravo-Bravo v. Garland,
    54 F.4th 634
    , 638 (9th Cir. 2022).
3.     Martinez Lara, based on his alleged mistreatment while in the custody
of Immigration and Customs Enforcement, also raises a Bivens-type1 claim for
asserted violation of his civil rights. This, however, is neither the proper
proceeding nor the proper forum in which to make such claims in the first instance.
The temporary stay of removal remains in place until the mandates issue.
No. 17-72452:       PETITION FOR REVIEW DENIED.
No. 18-71713:       PETITION FOR REVIEW DENIED.
No. 19-71067:       PETITION FOR REVIEW DENIED.
1
See Bivens v. Six Unknown Agents of the Fed. Bureau of Narcotics,
    403 U.S. 388
     (1971).
3