Bertha Castillon-Camposano v. Merrick Garland ( 2023 )

NOT FOR PUBLICATION FILED
UNITED STATES COURT OF APPEALS MAR 27 2023
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
BERTHA SONIA CASTILLON- No. 20-70558
CAMPOSANO, AKA Bertha Sonia Castillon
Camposano, Agency No. A072-810-969
Petitioner,
MEMORANDUM*
v.
MERRICK B. GARLAND, Attorney
General,
Respondent.
On Petition for Review of an Order of the
Board of Immigration Appeals
Submitted January 23, 2023, Withdrawn January 24, 2023, Resubmitted March 23,
2023**
San Francisco, California
Before: GOULD, RAWLINSON, and BRESS, Circuit Judges.
Petitioner Bertha Castillon-Camposano (“Castillon-Camposano”), a citizen
of Peru, petitions for review of a Board of Immigration Appeals (“BIA”) decision
*
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).
denying her motion to reopen sua sponte. We lack jurisdiction to review the BIA’s
discretionary denial of sua sponte relief. Lona v. Barr, 958 F.3d 1225, 1227 (9th
Cir. 2020). We dismiss Castillon-Camposano’s petition.
1. We hold that the immigration courts did not lack jurisdiction due to an
allegedly deficient Order to Show Cause (“OSC”). The holding in Pereira v.
Sessions, 138 S.Ct. 2105 (2018), does not apply to Castillon-Camposano, as we
recognized in Gutierrez-Alm v. Garland, No. 17-71012, __ F.4th __, 2023 WL
2518338 (9th Cir. Mar. 15, 2023). In Pereira, the Supreme Court considered the
requirements for a Notice to Appear under the Immigration and Nationality Act
(“INA”) after the passage of the Illegal Immigration Reform and Immigrant
Responsibility Act of 1996 (“IIRIRA”). The Court did not consider the pre-IIRIRA
statutory scheme, which explicitly permitted the time and place of the hearing to be
sent in a separate Notice of Hearing after the initial OSC. By contrast, the Notice to
Appear in post-IIRIRA proceedings expressly requires the time and place of the
hearing to be included in the initial document. Compare 8 U.S.C. §
1252b(a)(2)(A)(i) (1994), with 8 U.S.C. § 1229(a)(1)(G)(i)(2018).
2. We do not have jurisdiction to review the denial of a motion for sua
sponte reopening by the BIA. Castillon-Camposano expressly sought to invoke the
BIA’s sua sponte authority so she could pursue other forms of relief.
PETITION DISMISSED.
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