Valenzuela Rivera v. Garland ( 2023 )

NOT FOR PUBLICATION FILED
UNITED STATES COURT OF APPEALS MAR 30 2023
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
Sixto Valenzuela Rivera, No. 21-1091
Petitioner, Agency No. A087-901-366
v.
MEMORANDUM*
Merrick B. Garland, U.S. Attorney
General,
Respondent.
On Petition for Review of an Order of the
Board of Immigration Appeals
Submitted March 28, 2023**
San Francisco, California
Before: M. SMITH and OWENS, Circuit Judges, and RODRIGUEZ,*** District
Judge.
Sixto Valenzuela Rivera (“Valenzuela”), a native and citizen of Mexico,
petitions for review of the Board of Appeals’ (“BIA”) decision summarily
dismissing his appeal and denying his motion to remand. We review for abuse
*
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 Xavier Rodriguez, United States District Judge for
the Western District of Texas, sitting by designation.
of discretion both the BIA’s summary dismissal of an appeal and its denial of a
motion to remand. Nolasco-Amaya v. Garland, 14 F.4th 1007, 1012 (9th Cir.
2021); Taggar v. Holder, 736 F.3d 886, 889 (9th Cir. 2013). As the parties are
familiar with the facts, we do not recount them here. We deny in part and
dismiss in part the petition.
The BIA acted within its discretion by summarily dismissing
Valenzuela’s appeal of the immigration judge’s (“IJ”) decision. The BIA did
not abuse its discretion by summarily dismissing on the ground that
Valenzuela’s Notice of Appeal, which was prepared with the assistance of
counsel, failed to meaningfully apprise the BIA of the reasons for his challenge
to the IJ’s decision. See 8 C.F.R. § 1003.1(d)(2)(i)(A); Nolasco-Amaya, 14
F.4th at 1012 (noting that under the BIA’s “strict specificity requirement when
evaluating the notice of reasons for appeal,” “[a] noncitizen must provide
meaningful guidance to the BIA by informing it of the issues contested on
appeal” and include supporting authority “[w]here a question of law is
presented” (citations and internal quotation marks omitted)). The BIA also did
not abuse its discretion by summarily dismissing on the ground that Valenzuela
failed to file a separate written brief or statement after he checked the box on his
Notice of Appeal indicating that he intended to do so, and he did not reasonably
explain such a failure, even given his motion to remand. See 8 C.F.R.
§ 1003.1(d)(2)(i)(E).
In addition, the BIA acted within its discretion by denying Valenzuela’s
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motion to remand, which was based on excerpts from a book concerning the
danger and harm deportees from the United States face when returned to
Mexico. The BIA did not abuse its discretion in determining that, although the
book may have been published after his removal hearing, Valenzuela had not
demonstrated that the factual evidence referenced in the book was unavailable
for his hearing. See 8 C.F.R. § 1003.2(c)(1) (stating that a motion to reopen
“shall not be granted unless it appears to the Board that evidence sought to be
offered is material and was not available and could not have been discovered or
presented at the former hearing”); see also Angov v. Lynch, 788 F.3d 893, 897
(9th Cir. 2015) (stating that a motion to remand is treated as having the same
requirements as a motion to reopen). The BIA also did not abuse its discretion
in determining that Valenzuela had not met his heavy burden of showing that if
the proceedings were remanded, the book would likely change the result in his
case. See Shin v. Mukasey, 547 F.3d 1019, 1025 (9th Cir. 2008) (stating that
applicants “who seek to remand or reopen proceedings to pursue relief bear a
‘heavy burden’ of proving that, if proceedings were reopened, the new evidence
would likely change the result in the case” (citation omitted)).
Finally, Valenzuela failed to exhaust his argument that the BIA
improperly rejected his motion to terminate for lack of jurisdiction due to his
failure to submit a filing fee. See Dawson v. Garland, 998 F.3d 876, 880 n.2
(9th Cir. 2021). Therefore, we dismiss this portion of Valenzuela’s petition.
The stay of removal remains in place until the mandate issues.
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PETITION DENIED IN PART AND DISMISSED IN PART.
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