Cirila Verastegui-Araujo v. Merrick Garland ( 2021 )

NOT FOR PUBLICATION FILED
UNITED STATES COURT OF APPEALS OCT 15 2021
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
CIRILA VERASTEGUI-ARAUJO, AKA No. 20-72455
Asminda Valle, AKA Cirila Verastegui,
AKA Asminda Verastegui-Valle, Agency No. A088-639-160
Petitioner,
MEMORANDUM*
v.
MERRICK B. GARLAND, Attorney
General,
Respondent.
On Petition for Review of an Order of the
Board of Immigration Appeals
Submitted October 12, 2021**
Before: TALLMAN, RAWLINSON, and BUMATAY, Circuit Judges.
Cirila Verastegui-Araujo, a native and citizen of Mexico, petitions for
review of the Board of Immigration Appeals’ (“BIA”) order denying her motion to
reopen and reconsider removal proceedings. We have jurisdiction under 8 U.S.C.
*
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).
§ 1252. We review for abuse of discretion the BIA’s denial of a motion to reopen
or a motion to reconsider. Ghahremani v. Gonzales, 498 F.3d 993, 997 (9th Cir.
2007). We review de novo claims of due process violations in immigration
proceedings. Sandoval-Luna v. Mukasey, 526 F.3d 1243, 1246 (9th Cir. 2008).
We deny the petition for review.
The BIA did not abuse its discretion in denying Verastegui-Araujo’s motion
to reopen or reconsider as untimely, where it was filed more than five years after
the order of removal became final, and where she did not establish that she would
qualify for a regulatory exception to the filing deadline for motions to reopen or
that equitable tolling of the filing deadline for motions for reconsideration is
warranted. See 8 U.S.C. § 1229a(c)(6)(b), (7)(C)(i); 8 C.F.R. § 1003.2 (c)(3);
Avagyan v. Holder, 646 F.3d 672, 679 (9th Cir. 2011) (equitable tolling of the
filing deadline may be available “when a petitioner is prevented from filing
because of a deception, fraud, or error, as long as the petitioner acts with due
diligence” in discovering such circumstances); see also Aguilar Fermin v. Barr,
958 F.3d 887, 895 (9th Cir. 2020) (“the lack of time, date, and place in the NTA
sent to [petitioner] did not deprive the immigration court of jurisdiction over her
case”).
In light of this disposition, we need not reach Verastegui-Araujo’s
contentions as to the merits of her motion reopen or reconsider. See Simeonov v.
2 20-72455
Ashcroft, 371 F.3d 532, 538 (9th Cir. 2004) (courts and agencies are not required
to decide issues unnecessary to the results they reach).
The BIA did not err in concluding that Verastegui-Araujo’s contention that
her underlying removal order was invalid was foreclosed by Aguilar Fermin v.
Barr, 958 F.3d 887 (9th Cir. 2020). Thus, she showed no gross miscarriage of
justice in the underlying order. See Vega-Anguiano v. Barr, 982 F.3d 542, 547
(9th Cir. 2019) (demonstrating a gross miscarriage of justice requires establishing
“a deportation or removal order had no valid legal basis at the time of its issuance
or at the time of its execution.”).
We reject as unsupported by the record Verastegui-Araujo’s contentions that
the BIA erred in its analysis and violated her right to due process by denying her
motion to reopen and reconsider.
The temporary stay of removal remains in place until issuance of the
mandate.
PETITION FOR REVIEW DENIED.
3 20-72455