Fortunato Amador Duenas v. Merrick Garland ( 2023 )

NOT FOR PUBLICATION FILED
UNITED STATES COURT OF APPEALS JUL 27 2023
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
FORTUNATO DE JESUS AMADOR No. 18-71987
DUENAS,
Agency No. A205-318-278
Petitioner,
v. MEMORANDUM*
MERRICK B. GARLAND, Attorney
General,
Respondent.
On Petition for Review of an Order of the
Board of Immigration Appeals
Submitted July 20, 2023**
San Francisco, California
Before: OWENS, LEE, and BUMATAY, Circuit Judges.
Fortunato de Jesus Amador Duenas petitions for review of an order from the
Board of Immigration Appeals (BIA) denying his motion to reopen removal
proceedings. We have jurisdiction under 8 U.S.C. § 1252(a)(1), and we deny the
*
This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
**
The panel unanimously concludes that this case is suitable for
decision without oral argument. See Fed. R. App. P. 34(a)(2).
petition for review.
1. In a published opinion issued concurrently with this memorandum
disposition, we hold that the appointment and removal process for Immigration
Judges and members of the BIA comports with the Constitution. These officials are
inferior officers of the United States, see Lucia v. SEC, 138 S. Ct. 2044, 2051–53
(2018); Free Enter. Fund v. PCAOB, 561 U.S. 477, 510 (2010), so the Constitution’s
Appointments Clause permits their appointment by the Attorney General. U.S.
Const. art. II, § 2, cl. 2; 8 U.S.C. § 1101(b)(4); 8 U.S.C. § 1229a; 8 C.F.R. § 1003.1.
And Amador Duenas has identified no impermissible restriction on the Attorney
General’s ability to remove these officials. See Free Enter. Fund, 561 U.S. at 493,
495–96.
2. The BIA did not abuse its discretion by denying Amador Duenas’s
motion to reopen the removal proceedings. See Najmabadi v. Holder, 597 F.3d 983,
986 (9th Cir. 2010). A petitioner must support a motion to reopen with “previously
unavailable, material evidence.” Id. Amador Duenas accompanied his motion with
declarations from him and his attorney regarding his attorney’s failure to file the
documents necessary to receive a briefing schedule for his appeal to the BIA. This
evidence does not affect Amador Duenas’s eligibility for relief from removal.
Because it would not “change the result in the case,” it cannot support reopening
removal proceedings. See Shin v. Mukasey, 547 F.3d 1019, 1025 (9th Cir. 2008).
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3. We will not consider Amador Duenas’s argument that the agency erred
in denying his application for cancellation of removal. Amador Duenas never sought
review of the BIA’s on-the-merits dismissal of his appeal of the Immigration Judge’s
determination that he was ineligible for cancellation because he failed to provide
evidence showing ten years of continuous physical presence in the United States.
He petitions for review only of the BIA’s later decision to deny his motion to reopen
the removal proceedings. “Our review is, therefore, limited to consideration of that
order, rather than the merits of [Amador Duenas’s] underlying claim for cancellation
of removal.” See Hernandez-Velasquez v. Holder, 611 F.3d 1073, 1077 (9th Cir.
2010); see also Martinez-Serrano v. INS, 94 F.3d 1256, 1257–58 (9th Cir. 1996).
Nor will we address Amador Duenas’s argument that his waiver of the right
to appeal the Immigration Judge’s decision to the BIA was ineffective. This
argument is misplaced—the BIA determined that Amador Duenas did not waive his
right to appeal before dismissing his appeal on the merits.
In his briefing to this court, Amador Duenas separately argues that the Notice
to Appear that initiated the removal proceedings against him was defective because
it did not include the date and time of his initial removal hearing. He thus maintains
that his time of continuous physical presence in the United States has not ended
under Pereira v. Sessions, 138 S. Ct. 2105, 2109–10 (2018), and that he is now
eligible for cancellation of removal. Although the BIA could exercise its discretion
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to reopen Amador Duenas’s removal proceedings sua sponte to consider this
argument, see Menendez-Gonzales v. Barr, 929 F.3d 1113, 1116 (9th Cir. 2019), we
will not consider it because Amador Duenas did not raise it in the motion to reopen
at issue in this appeal. See Hernandez-Velasquez, 611 F.3d at 1077.
PETITION DENIED.
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