Otis Carr v. Merrick Garland ( 2021 )

FILED
NOT FOR PUBLICATION
JUL 21 2021
UNITED STATES COURT OF APPEALS MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
OTIS CARR, AKA Anthony George Nos. 18-72667
Brown, AKA Chris Carr, AKA Otis 19-71607
George Carr, AKA Anthony Powell,
Agency No. A038-995-631
Petitioner,
v. MEMORANDUM*
MERRICK B. GARLAND, Attorney
General,
Respondent.
On Petition for Review of an Order of the
Board of Immigration Appeals
Argued and Submitted July 7, 2021
Seattle, Washington
Before: CLIFTON and IKUTA, Circuit Judges, and CALDWELL,** District
Judge.
*
This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
** The Honorable Karen K. Caldwell, United States District Judge for
the Eastern District of Kentucky, sitting by designation.
Otis Carr, a native and citizen of Jamaica, seeks review of the decisions of
the Board of Immigration Appeals (BIA) denying his motion to reopen the removal
proceedings in Georgia immigration court and denying his motion to terminate the
removal proceedings in California immigration court. We have jurisdiction under
8 U.S.C. § 1252, and we deny the petitions for review.
Even if we assume immigration law precludes concurrent proceedings, the
Notice to Appear (NTA) that initiated the California proceedings on December 15,
2017 (which resulted in the current removal order under review) was filed after the
termination of the New York proceedings and after the Georgia proceedings were
final. See 8 C.F.R. § 1003.14. Therefore, the BIA did not err in dismissing Carr’s
appeal of the California immigration court’s denial of his motion to terminate the
removal proceedings.
Because the New York proceedings were properly terminated,1 we reject
Carr’s argument that he is still entitled to seek relief under § 212(c) of the
Immigration and Nationality Act due to the pendency of New York proceedings
that had commenced before the Illegal Immigration Reform and Immigrant
Responsibility Act of 1996 (IIRIRA)’s effective date. Cf. Pascua v. Holder, 641
1
The record does not show that Carr opposed the government’s motion to
terminate the New York Proceedings.
2
F.3d 316, 318–19 (9th Cir. 2011) (holding that while IIRIRA repealed § 212(c),
relief under this provision is available in deportation proceedings that commenced
before IIRIRA’s effective date). Neither the New York proceedings nor the
Georgia proceedings had any effect on the second California proceedings which
were initiated by the filing of a new NTA based on the independent ground that in
2017, he was “an alien present in the United States who has not been admitted or
paroled.” Carr did not challenge the NTA’s charges of removability before the
BIA.
Before the BIA, Carr did not dispute that his motion to reopen proceedings
in the Georgia immigration court was untimely. Nor did he argue that the
untimeliness should be excused under equitable tolling or equitable estoppel
principles. Therefore, to the extent Carr now argues that his untimeliness should
be excused, we do not have jurisdiction to review this unexhausted claim on
appeal. 8 U.S.C. § 1252(d)(1); Zara v. Ashcroft, 383 F.3d 927, 930 (9th Cir.
2004).
In declining to sua sponte reopen the Georgia proceedings, the BIA did not
reach a legal conclusion on whether the Georgia immigration court properly
maintained jurisdiction to adjudicate the 2012-2013 removal proceedings. Instead,
the BIA concluded that regardless of its merits, Carr’s jurisdictional argument did
3
not constitute an exceptional situation that would warrant a sua sponte reopening.
Because the BIA’s order did not contain a legal or constitutional error plain on its
face, we lack jurisdiction to review its decision. See Lona v. Barr, 958 F.3d 1225,
1232, 1234 (9th Cir. 2020).2
PETITION DENIED.
2
We therefore deny as moot the government’s request for a venue transfer.
4