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 2020-06

Luis Camacho v. William Barr ( 2020 )


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  •                                                                               FILED
NOT FOR PUBLICATION
JUN 11 2020
UNITED STATES COURT OF APPEALS                         MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
LUIS ARTURO PARRA CAMACHO,                       No.   16-71537
AKA Luis Camacho Parra,
Agency No. A095-660-807
Petitioner,
v.                                              MEMORANDUM*
WILLIAM P. BARR, Attorney General,
Respondent.
On Petition for Review of an Order of the
Board of Immigration Appeals
Submitted June 9, 2020**
San Francisco, California
Before: THOMAS, Chief Judge, and SCHROEDER and BRESS, Circuit Judges.
Luis Arturo Parra Camacho (“Parra”) petitions for review of a decision by
the Board of Immigration Appeals (“BIA”) denying his motion to reopen his
removal proceedings. We have jurisdiction under
    8 U.S.C. § 1252
     and we deny the
*
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).
petition. Because the parties are familiar with the history of the case, we need not
recount it here.
We review the BIA’s denial of a motion to reopen removal proceedings for
abuse of discretion. Avagyan v. Holder,
    646 F.3d 672
    , 674 (9th Cir. 2011). We
lack jurisdiction to review the BIA’s refusal to reopen deportation proceedings sua
sponte except “for the limited purpose of reviewing the reasoning behind the
decisions for legal or constitutional error.” Bonilla v. Lynch,
    840 F.3d 575
    , 588
(9th Cir. 2016).
The BIA did not abuse its discretion in concluding that Parra’s motion to
reopen was untimely because Parra filed the petition more than 90 days after the
BIA’s final decision, see 8 U.S.C. § 1229a(c)(7)(C)(i);
    8 C.F.R. § 1003.2
    (c)(2),
and the BIA properly concluded that the vacatur of Parra’s prior conviction did not
bring his motion within any statutory or regulatory exception to the time limit on
motions to reopen, see 8 U.S.C. § 1229a(c)(7)(C);
    8 C.F.R. § 1003.2
    (c)(3).
We decline to address Parra’s argument, made for the first time in his reply
brief, that the BIA may have committed an error of law that led it to believe that an
exercise of its sua sponte power to reopen proceedings would have been futile. See
Turtle Island Restoration Network v. U.S. Dep’t of Commerce,
    672 F.3d 1160
    ,
1166 n.8 (9th Cir. 2012) (“[A]rguments raised for the first time in a reply brief are
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waived.”). In any case, our “review under Bonilla is constricted to legal or
constitutional error that is apparent on the face of the BIA’s decision and does not
extend to speculating whether the BIA might have misunderstood some aspect of
its discretion.” See Lona v. Barr, No. 17-70329, — F.3d —,
    2020 WL 2507362
    , at
*8 (9th Cir. May 15, 2020) (citing Bonilla, 840 F.3d at 588).
We deny Parra’s motion to remand to the BIA to determine whether it had
jurisdiction over his case under Pereira v. Sessions,
    138 S. Ct. 2105
     (2018). As
Parra himself concedes, Pereira did not concern the immigration court’s
jurisdiction. See
    id. at 2110
    . Moreover, this Court and the BIA have already
rejected the precise argument Parra makes here. See Aguilar Fermin v. Barr,
    958 F.3d 887
    , 895 (9th Cir. 2020) (distinguishing Pereira and holding that a notice to
appear (“NTA”) that otherwise complies with regulations but fails to include date,
time, and location information vests jurisdiction in the immigration court); Matter
of Bermudez-Cota,
    27 I. & N. Dec. 441
    , 447 (BIA 2018) (an NTA that does not
specify the time and place of a non-citizen’s initial removal hearing still vests an
immigration judge with jurisdiction over the removal proceedings so long as a
notice of hearing specifying this information is later sent to the non-citizen).
We also deny Parra’s motion to supplement the record on appeal. Our
review of BIA decisions is generally “confined to the administrative record before
3
the BIA.” Dent v. Holder,
    627 F.3d 365
    , 371 (9th Cir. 2010). We “may review
out-of-record evidence only where (1) the Board considers the evidence; or (2) the
Board abuses its discretion by failing to consider such evidence upon the motion of
an applicant.”
    Id.
     (quoting Fisher v. I.N.S.,
    79 F.3d 955
    , 964 (9th Cir. 1996) (en
banc)). Neither circumstance is present here.
PETITION DENIED.
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