Dildar Thind v. Loretta Lynch , 671 F. App'x 606 ( 2016 )

NOT FOR PUBLICATION FILED
UNITED STATES COURT OF APPEALS DEC 19 2016
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
DILDAR S. THIND, AKA Dibaigh Singh, No. 15-72457
AKA Didar Singh,
Agency No. A075-304-103
Petitioner,
v. MEMORANDUM*
LORETTA E. LYNCH, Attorney General,
Respondent.
On Petition for Review of an Order of the
Board of Immigration Appeals
Submitted December 14, 2016**
Before: WALLACE, LEAVY, and FISHER, Circuit Judges.
Dildar S. Thind, a native and citizen of India, petitions for review of the
Board of Immigration Appeals’ (“BIA”) order dismissing his appeal from an
immigration judge’s (“IJ”) order denying his motion to reopen and terminate
removal proceedings conducted in absentia in San Francisco, California. Our
*
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).
jurisdiction is governed by 8 U.S.C. § 1252. We review the denial of a motion to
reopen for abuse of discretion and review de novo questions of law. Singh v.
Ashcroft, 367 F.3d 1182, 1185 (9th Cir. 2004). We deny in part and dismiss in part
the petition for review.
The agency did not err or abuse its discretion in denying Thind’s motion to
reopen on the ground that res judicata was not applicable, where there was no final
judgment in Thind’s removal proceedings conducted in New York or Texas when
the Notice to Appear (“NTA”) commenced proceedings in California, and where
the government could not have brought the charges in the NTA against Thind in
his other proceedings because those proceedings were brought under separate
names and Alien Registration Numbers. See Valencia-Alvarez v. Gonzales, 469
F.3d 1319, 1323-24 (9th Cir. 2006) (“The criteria for the application of res judicata
. . . are that there be a final judgment, rendered on the merits in a separate action.”
(emphasis in original)); Abdisalan v. Holder, 774 F.3d 517, 523 (9th Cir. 2014)
(IJ’s removal order becomes a final order upon the BIA affirming the order, or
when the time to appeal the order to the BIA expires); Bravo-Pedroza v. Gonzales,
475 F.3d 1358, 1359 (9th Cir. 2007) (“Res judicata bars the government from
bringing a second case based on evidence . . . that it could have presented in the
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first case.”).
To the extent we have jurisdiction to consider Thind’s contention that the
NTA was improvidently issued, see 8 U.S.C. § 1252(g), the agency did not err or
abuse its discretion in denying the motion to reopen based on this contention,
where Thind failed to point to authority that would allow an alien to unilaterally
move to terminate proceedings based on an improvidently issued NTA. Cf. Matter
of W-C-B-, 24 I. & N. Dec. 118 (BIA 2007) (motion to terminate properly granted
where the government moved to terminate based on proceedings improvidently
begun because alien was subject to reinstatement of a prior order).
The BIA also did not abuse its discretion in denying the motion to reopen
based on lack of notice, where the BIA would deny the termination relief he
ultimately sought. See INS v. Abudu, 485 U.S. 94, 104 (1988).
We lack jurisdiction to consider Thind’s unexhausted contentions regarding
prosecutorial discretion and ineffective assistance of counsel, and his contentions
regarding the agency’s exercise of its sua sponte reopening authority. See Tijani v.
Holder, 628 F.3d 1071, 1080 (9th Cir. 2010) (court lacks jurisdiction to review
legal claims not presented to the BIA); Mejia-Hernandez v. Holder, 633 F.3d 818,
823-24 (9th Cir. 2011) (this court lacks jurisdiction to review the BIA’s decision
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not to reopen sua sponte); cf. Bonilla v. Lynch, 840 F.3d 575, 588 (9th Cir. 2016).
PETITION FOR REVIEW DENIED in part; DISMISSED in part.
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