Juan Barcenas v. William Barr ( 2020 )

NOT FOR PUBLICATION FILED
UNITED STATES COURT OF APPEALS SEP 14 2020
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
JUAN BARCENAS, AKA Juan Barcenas- No. 17-72624
Lara,
Petitioner, Agency No. A075-719-507
v.
MEMORANDUM*
WILLIAM P. BARR, Attorney General,
Respondent.
JUAN BARCENAS-LARA, AKA Juan Lara No. 18-70164
Barcenas,
Agency No. A075-719-507
Petitioner,
v.
WILLIAM P. BARR, Attorney General,
Respondent.
On Petition for Review of an Order of the
Board of Immigration Appeals
Argued and Submitted August 13, 2020
Pasadena, California
*
This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
Before: WARDLAW and VANDYKE, Circuit Judges, and CHOE-GROVES,**
Judge.
Juan Barcenas-Lara (Barcenas), a native and citizen of Mexico, petitions for
review of the Board of Immigration Appeals’ (BIA) (1) denial of his motion to
reconsider its prior order dismissing Barcenas’s appeal of the Immigration Judge’s
(IJ) denial of his motion to reopen his 2001 in abstentia removal proceedings and
(2) affirmance of the IJ’s 2017 denial of his application for withholding of removal
and relief under the Convention Against Torture (CAT). We have jurisdiction
under 8 U.S.C. § 1252. We deny the petitions.
1. The Immigration Court properly exercised jurisdiction in Barcenas’s
2001 removal proceedings. “A notice to appear need not include time and date
information” for jurisdiction to vest in the Immigration Court. Karingithi v.
Whitaker, 913 F.3d 1158, 1160 (9th Cir. 2019). Pereira v. Sessions, 138 S. Ct.
2105 (2018), is not controlling because “the Immigration Court’s jurisdiction does
not hinge on [8 U.S.C.] § 1229a.” Karingithi, 913 F.3d at 1159.
2. The BIA properly denied Barcenas’s January 12, 2017, motion to
reopen his 2001 removal proceedings as untimely. Barcenas filed his motion to
reopen over 15 years after the in abstentia order issued, when the regulations state
**
The Honorable Jennifer Choe-Groves, Judge for the United States
Court of International Trade, sitting by designation.
2
it must be “filed within 180 days after the date of the order of removal.” 8 U.S.C.
§ 1229a(b)(5)(C)(i).
3. The BIA properly denied Barcenas’s June 27, 2017, motion to reopen
(labeled a “motion to reconsider”) as both time- and number-barred. Not only was
the motion untimely, but it contravened the rule that an alien subject to an in
abstentia removal order “may file only one motion” to reopen. 8 C.F.R.
§ 1003.23(b)(4)(ii). Neither of Barcenas’s motions provided sufficient grounds for
equitably tolling these time or number limitations.
4. Substantial evidence supports the BIA’s denial of Barcenas’s claim
for withholding of removal. Moreover, the BIA properly rejected the particular
social group of “returning migrants subject to police corruption.” This proposed
social group is “too amorphous, overbroad[] and diffuse” to satisfy the particularity
requirement. Reyes v. Lynch, 842 F.3d 1125, 1139 (9th Cir. 2016) (rejecting the
social group of “deportees from the United States to El Salvador” on similar
grounds). Moreover, solely incorporating the purported persecution into this
otherwise non-cognizable social group does not remedy this underlying defect.
See Diaz-Reynoso v. Barr, 968 F.3d 1070, 1081–82 (9th Cir. 2020).
5. As to the BIA’s denial of CAT relief, substantial evidence supports its
determination that Barcenas failed to demonstrate past torture and thus did not
“prove that he ‘more likely than not’ would be tortured if he returned home.”
3
Singh v. Whitaker, 914 F.3d 654, 663 (9th Cir. 2019); see also Ahmed v. Keisler,
504 F.3d 1183, 1195, 1201 (9th Cir. 2007) (failure to establish likelihood of future
torture where the applicant was previously “taken into custody and beaten on four
occasions” and where the country conditions report “state[d] that police corruption
and abuse is rampant”).
PETITIONS DENIED.
4