Edwin Gomez v. Merrick Garland ( 2021 )

FILED
NOT FOR PUBLICATION
OCT 12 2021
UNITED STATES COURT OF APPEALS MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
EDWIN GOMEZ; EDWIN GOMEZ- No. 20-72213
VELIZ,
Agency Nos. A215-893-800
Petitioners, A215-893-802
v.
MEMORANDUM*
MERRICK B. GARLAND, Attorney
General,
Respondent.
On Petition for Review of an Order of the
Board of Immigration Appeals
Submitted October 7, 2021**
San Francisco, California
Before: THOMAS, Chief Judge, and HAWKINS and FRIEDLAND, Circuit
Judges.
Edwin Abel Gomez-Veliz and his son, Edwin Benedicto Gomez,
(collectively “Gomez”) petition the summary dismissal of their untimely appeal of
*
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).
a final removal order by the Board of Immigration Appeals (BIA). We have
jurisdiction to review the dismissal under 8 U.S.C. § 1252, and we review for an
abuse of discretion. Singh v. Gonzales, 416 F.3d 1006, 1009 (9th Cir. 2005). We
deny the petition in part and dismiss it in part.
The BIA did not abuse its discretion in summarily dismissing Gomez’s
appeal as untimely under 8 C.F.R. § 1003.1(d)(2)(i)(G). Gomez did not dispute
that his appeal was late and offered no explanation to the BIA for the delay. The
BIA’s decision was therefore not based on a legally erroneous interpretation of its
regulations or “arbitrar[y], irrational[], or contrary to the law.” Zetino v. Holder,
622 F.3d 1007, 1012 (9th Cir. 2010).
We lack jurisdiction to consider Gomez’s claim that the BIA erroneously
failed to extend the appeal filing deadline given the “rare circumstances” of the
COVID-19 pandemic. Gomez neither raised this argument below, nor exhausted
his administrative remedies before the BIA. 8 U.S.C. § 1252(d)(1) (“A court may
review a final order of removal only if . . . the alien has exhausted all
administrative remedies available to the alien as of right . . . .”); Barron v.
Ashcroft, 358 F.3d 674, 677–78 (9th Cir. 2004) (noting exhaustion is mandatory
and jurisdictional).
PETITION DENIED in part and DISMISSED in part.
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