Edwin Calderon-Fajardo v. William Barr ( 2020 )

NOT FOR PUBLICATION FILED
UNITED STATES COURT OF APPEALS OCT 26 2020
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
EDWIN ORLANDO CALDERON- No. 19-72874
FAJARDO,
Agency No. A077-242-580
Petitioner,
v. MEMORANDUM*
WILLIAM P. BARR, Attorney General,
Respondent.
On Petition for Review of an Order of the
Board of Immigration Appeals
Submitted September 3, 2020**
Pasadena, California
Before: SILER,*** BERZON, and LEE, Circuit Judges.
Memorandum joined by Judge LEE and Judge SILER;
Dissent by Judge BERZON
Edwin Calderon-Fajardo, a native and citizen of El Salvador, petitions for
review of the Board of Immigration Appeals decision affirming an Immigration
*
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).
***
The Honorable Eugene E. Siler, United States Circuit Judge for the
U.S. Court of Appeals for the Sixth Circuit, sitting by designation.
Judge’s denial of reopening. We have jurisdiction under 8 U.S.C. § 1252, and we
deny the petition.
1. Calderon-Fajardo unlawfully entered the United States in May 1998.
Removal proceedings commenced a month later, and he was granted the right to
voluntarily depart by March 2000. Calderon-Fajardo, however, apparently did not
depart and remained in the United States. In March 2018, after he was detained by
immigration authorities, he filed a motion to reopen his removal proceedings from
two decades ago. The motion consisted of a single paragraph without any
accompanying documents or evidence. That motion was denied by the Immigration
Judge and then affirmed by the Board of Immigration Appeals.
2. We review the denial of a motion to reopen for an abuse of discretion.
See De Martinez v. Ashcroft, 374 F.3d 759, 761 (9th Cir. 2004). Under 8 C.F.R. §
1003.23(b)(3), a motion to reopen must be, inter alia: (i) “supported by affidavits
and other evidentiary material”; and (ii) “accompanied by the appropriate
application for relief and all supporting documents.” Calderon-Fajardo’s one-
paragraph motion filed in March 2018 was neither supported by evidentiary material
nor accompanied by an application for relief. The agency thus acted within its
discretion in denying reopening because he failed to satisfy procedural requirements
prescribed by regulation. See Romero-Ruiz v. Mukasey, 538 F.3d 1057, 1064 (9th
Cir. 2008) (failure to “satisfy the procedural requirements” precludes relief);
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Khourassany v. I.N.S., 208 F.3d 1096, 1099 (9th Cir. 2000) (procedural rules for
reopening — with the limited exception of time and numerical limitations and prior
unavailability of evidence — apply in the context of a claim under the Convention
Against Torture).
3. Calderon-Fajardo also raises due process and equal protection
challenges to the denial of reopening, which we review de novo. Ram v. I.N.S., 243
F.3d 510, 516 (9th Cir. 2001). These arguments lack merit. First, the Immigration
Court Practice Manual — consistent with 8 C.F.R. § 1003.23(b)(3) — requires that
if a motion to reopen “is based on eligibility for relief, the motion must be
accompanied by a copy of the application for that relief and all supporting
documents.” Second, Calderon-Fajardo’s claim of insufficient time is unavailing
because his motion was premised on events that allegedly occurred over the
preceding year and a half, and he has offered no indication that anything prevented
him from preparing a compliant motion when he first became aware of the events
giving rise to his request for relief. Third, the gap between Calderon-Fajardo’s
voluntary departure date and the recent events described in his motion is immaterial
because the agency’s decision was not based on the timing requirements of 8 C.F.R.
§ 1003.23(b)(3).
Finally, Calderon-Fajardo’s exclusion from the scope of 8 C.F.R. § 208.31
does not violate equal protection because he is not similarly situated to the two
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groups covered by the regulation. See Hernandez-Mancilla v. Holder, 633 F.3d
1182, 1185 (9th Cir. 2011) (in equal protection challenge, an immigration law “is
presumed constitutional, and ‘the burden is on the one attacking the legislative
arrangement to negative every conceivable basis which might support it.’”) (citation
omitted). Unlike aggravated felons and illegally reentering aliens, who face
summary proceedings, Calderon-Fajardo’s removal was ordered by an Immigration
Judge. He therefore could (and did) avail himself of the option to seek reopening
under 8 C.F.R. § 1003.23(b)(3). His inability to secure relief stems not from the
absence of equal protection under 8 C.F.R. § 208.31, but rather due to his failure to
comply with requirements for reopening under 8 C.F.R. § 1003.23(b)(3).
DENIED.
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Calderon-Fajardo v. Barr, No. 19-72874 FILED
BERZON, J., dissenting: OCT 26 2020
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
I respectfully dissent.
The majority is correct that Calderon-Fajardo’s initial motion to reopen was
neither supported by evidentiary material nor accompanied by an application for
relief, as required by regulation. But the majority ignores the fact that
Calderon-Fajardo’s motion was initially granted. Following a change in venue, a
different Immigration Judge (“IJ”) subsequently granted the government’s motion
to reconsider and set a master calendar hearing to “reassess the order of the prior
judge.”
During that hearing, the record shows, Calderon-Fajardo was prepared to file
the missing documentation in support of his motion to reopen, which, at that point,
was still pending. Calderon-Fajardo’s counsel explained that “we’ve actually
prepared an application assuming we’re going to plead for that today, which I think
is also a declaration.” Nonetheless, the IJ did not permit counsel to cure any initial
error by accepting the filings. The IJ then denied Calderon-Fajardo’s motion to
reopen because of the initial procedural failure.
Construing a parallel regulation governing motions to reopen before the
Board of Immigration Appeals (“BIA”), this court held that it does not require
petitioners to submit the relevant evidentiary material and application for relief at
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the same time as their motions to reopen. Yeghiazaryan v. Gonzales, 439 F.3d 994,
998–99 (9th Cir. 2006) (interpreting 8 C.F.R. § 1003.2). Instead, petitioners must
file the relevant evidence and application within the applicable statutory time
period for filing the motion to reopen.
The regulation at issue here requires that a motion to reopen ordinarily be
filed “within 90 days of the day of entry of a final administrative order of
removal.” 8 C.F.R. § 1003.23(b)(1). Under Yeghiazaryan, a motion to reopen
could be filed on the first day of the period and the accompanying evidence and
application on the ninetieth. But the time limitation does not apply if “the basis of
the motion is to apply for … withholding of removal under the Convention Against
Torture, and is based on changed country conditions arising in … the country to
which removal has been ordered.” 8 C.F.R. § 1003.23(b)(4)(i). Here,
Calderon-Fajardo’s motion to reopen was based on alleged changed country
conditions. So Calderon-Fajardo’s motion to reopen would have been procedurally
properly filed had the application and declaration form been accepted when they
were proffered at the second hearing. The question whether there were in fact
changed country conditions could have been determined based on the application
and supporting documents filed.
Despite this sequence of events, one of the reasons that the BIA adopted and
affirmed the IJ’s decision was that “no such application was included with th[is]
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appeal.” This was error. Calderon-Fajardo’s attempt to file an application before
the IJ, where it was supposed to be filed, 8 C.F.R. § 1003.23, had been rejected.
The applicable regulation, interpreted consistently with Yeghiazaryan, allowed
petitioner to file the application after the motion as long as no deadline was
breached.
For these reasons, I would grant the petition, and remand with directions to
remand to the IJ for acceptance and consideration of the completed motion to
reopen, including for a determination whether the changed country conditions
exception applies. I therefore respectfully dissent.
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