Francisco Madrigal-Barrera v. Merrick Garland ( 2023 )

NOT FOR PUBLICATION FILED
UNITED STATES COURT OF APPEALS MAR 31 2023
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
FRANCISCO MADRIGAL-BARRERA, No. 19-71650
Petitioner, Agency No. A078-101-944
v.
MEMORANDUM*
MERRICK B. GARLAND, Attorney
General,
Respondent.
On Petition for Review of an Order of the
Board of Immigration Appeals
Submitted March 29, 2023**
Seattle, Washington
Before: NGUYEN and HURWITZ, Circuit Judges, and GUTIERREZ,*** Chief
District Judge.
Francisco Madrigal-Barrera, a native and citizen of Mexico, petitions for
review of a decision of the Board of Immigration Appeals (“BIA”) denying his
*
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 Philip S. Gutierrez, Chief United States District Judge
for the Central District of California, sitting by designation.
motion to reopen. We have jurisdiction under 8 U.S.C. § 1252 and deny the petition.
1. Madrigal contends that the immigration court did not have jurisdiction over
his removal proceedings because the Notices to Appear (“NTA”) issued in 2006 and
2011 failed to comply with the Immigration and Nationality Act and its
implementing regulations. This claim fails because the statutory definition of an
NTA “chiefly concerns the notice the government must provide noncitizens
regarding their removal proceedings, not the authority of immigration courts to
conduct those proceedings.” United States v. Bastide-Hernandez, 39 F.4th 1187,
1192 (9th Cir. 2022) (en banc). And the relevant regulation, 8 C.F.R. § 1003.14(a),
“is a claim-processing rule not implicating the court’s adjudicatory authority.” Id.
at 1191. Moreover, the BIA did not err by failing to equitably toll.1
2. Madrigal argues that although he waived a hearing in 2006, the BIA’s
decision denying reopening stated that he “appeared in court.” But that mistake does
not render the BIA decision denying reopening “arbitrary, irrational or contrary to
law.” See Cui v. Garland, 13 F.4th 991, 995–96 (9th Cir. 2021) (citation omitted).
The waiver did not deprive the immigration court of jurisdiction, see 8 C.F.R.
§ 1003.25(b), and we previously held that “the BIA did not err in concluding that
there was no gross miscarriage of justice in the 2006 proceedings,” Madrigal-
1
Madrigal’s claim for equitable tolling flows from his claim that the
immigration court did not have jurisdiction, and therefore fails. Madrigal does not
dispute the BIA’s decision not to reopen sua sponte.
2
Barrera v. Barr, 770 F. App’x 395, 396 (9th Cir. 2019).
PETITION FOR REVIEW DENIED.
3