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 2023-03

Gilberto Ramirez v. Merrick Garland ( 2023 )


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  •                                                                               FILED
NOT FOR PUBLICATION
MAR 28 2023
UNITED STATES COURT OF APPEALS                         MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
GILBERTO ABAD RAMIREZ, AKA                       No.   19-72628
Abad Ramirez Gilberto,
Agency No. A075-476-641
Petitioner,
v.                                              MEMORANDUM*
MERRICK B. GARLAND, Attorney
General,
Respondent.
On Petition for Review of an Order of the
Board of Immigration Appeals
Submitted March 10, 2023**
Pasadena, California
Before: KLEINFELD, WATFORD, and COLLINS, Circuit Judges.
Gilberto Abad Ramirez (Abad) asks that we grant his petition for review of
the Board of Immigration Appeals’ (the Board) decision denying his motion to
reopen his removal proceedings. We dismiss in part and deny in part the petition.
*
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).
We begin with jurisdiction. Abad asks us to review the Board’s refusal to:
1) exercise its sua sponte authority to reopen his case and 2) use its equitable
power to toll the filing deadline for Abad’s motion to reopen. We have jurisdiction
over the latter issue,
    8 U.S.C. § 1252
    (a)(1); Mata v. Lynch,
    576 U.S. 143
    , 147-48
(2015), but lack jurisdiction over the former. As a general rule, we cannot review
the Board’s refusal to exercise its sua sponte power to reopen a case. Ekimian v.
INS,
    303 F.3d 1153
    , 1160 (9th Cir. 2002). Although a narrow exception to that
general rule allows us to review “Board decisions denying sua sponte reopening
for the limited purpose of reviewing the reasoning behind the decisions for legal or
constitutional error,” Abad does not argue that the Board made such an error here.
Bonilla v. Lynch,
    840 F.3d 575
    , 588 (9th Cir. 2016). Indeed, the Board chose not
to exercise its sua sponte authority because Abad had not shown the “exceptional
circumstances to warrant granting this very untimely motion to reopen.”
We now consider the Board’s decision to not toll the filing deadline for
Abad’s motion. The Board did not abuse its discretion in denying the motion. See
Avagyan v. Holder,
    646 F.3d 672
    , 678 (9th Cir. 2011) (standard of review). The
Board decided Abad’s initial appeal on April 5, 2002, and his motion to reopen
proceedings was due 90 days after that date.
    8 C.F.R. § 3.2
    (c)(2) (2002 ed.). Abad
did not file his motion until September, 2018.
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The Board did not abuse its discretion in denying Abad’s motion to reopen
based on Abad not looking into the circumstances of the alleged fraud with the
requisite due diligence or the representation not prejudicing Abad. The long delay
between Abad’s 2002 appeal and Abad filing his motion to reopen, in these
circumstances, is sufficient to justify the Board’s determination as to due diligence.
See Bonilla,
    840 F.3d at 583
     (upholding the Board’s determination that a petitioner
did not exercise the requisite due diligence to require the equitable tolling of the
filing requirements for a motion to reopen after a shorter delay). Although Abad
likens his case to Rodriguez-Lariz v. INS,
    282 F.3d 1218
     (9th Cir. 2002), the
actions of the non-attorney representing the petitioners in that case cost the
petitioners their ability to file a meaningful motion to reopen, and those petitioners
had “also satisfied the procedural prerequisites to reopen on the basis of ineffective
assistance of counsel.”
    Id. at 1222, 1226
    . Here, the non-attorney’s representation
of Abad did not prevent him from filing a motion to reopen that complied with the
regulatory requirements. Abad also does not explain how the representation
prejudiced him and it is hard to tell how it might have, especially considering that
he was represented by counsel before the immigration judge, as the Board noted.
Insofar as the petition relates to the Board’s refusal to exercise its sua sponte
authority, the petition is dismissed for lack of jurisdiction. And because the Board
3
did not abuse its discretion in refusing to equitably toll the regulatory deadline for
Abad to file his motion for reopening, we must also deny the rest of the petition.
PETITION FOR REVIEW DISMISSED IN PART AND DENIED IN
PART.
4