Rudbin Colindres v. Jefferson Sessions

NOT FOR PUBLICATION FILED
UNITED STATES COURT OF APPEALS NOV 16 2017
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
RUDBIN ANADIL COLINDRES, AKA No. 13-72074
Jose Martinez,
Agency No. A095-745-722
Petitioner,
v. MEMORANDUM*
JEFFERSON B. SESSIONS III, Attorney
General,
Respondent.
On Petition for Review of an Order of the
Board of Immigration Appeals
Submitted November 14, 2017**
Pasadena, California
Before: NGUYEN and HURWITZ, Circuit Judges, and EATON,*** International
Trade Judge.
Rudbin Colindres, a Honduran citizen, seeks review of two Board of
*
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).
***
Richard K. Eaton, Judge of the United States Court of International
Trade, sitting by designation.
Immigration Appeals (BIA) decisions, the first dismissing his appeal of the denial
of his applications for asylum, withholding of removal, and relief under the
Convention Against Torture (CAT), and the second denying his motion to reopen
and reconsider the first decision. We dismiss in part and deny in part.
1. We lack jurisdiction over the petition for review insofar as it concerns the
BIA’s dismissal of Colindres’ appeal of the denial of his asylum, withholding of
removal, and CAT claims because the petition for review was untimely as to that
decision. A removal order becomes “final, and reviewable, when issued,” and
finality is not tolled by the filing of a subsequent motion to reopen or reconsider.
Stone v. INS, 514 U.S. 386, 405-406 (1995). A petition for review must be filed
“not later than 30 days after the date of the final order of removal.” 8 U.S.C. §
1252(b)(1). Colindres filed his petition for review on June 12, 2013, more than 30
days after the BIA’s March 13, 2013 decision dismissing his appeal.
2. Colindres’ petition for review of the BIA’s denial of his motion to reopen
and reconsider was timely, however, and we therefore have jurisdiction over his
petition to the extent it challenges that decision. See Kucana v. Holder, 558 U.S.
233, 252-53 (2010). “We review the denial of a motion to reopen or reconsider for
abuse of discretion.” Salta v. INS, 314 F.3d 1076, 1078 (9th Cir. 2002). Because
Colindres “fail[ed] [in his opening brief] to address how the BIA abused its
discretion by denying” the portions of his motion requesting reconsideration, his
2
arguments are waived. See Martinez-Serrano v. INS, 94 F.3d 1256, 1260 (9th Cir.
1996) (emphasis added).
To the extent Colindres did not waive his challenge to the BIA’s denial of
his motion to reopen, it fails on the merits. The BIA did not “act[] arbitrarily,
irrationally, or contrary to law” when it declined to reopen Colindres’ case because
of the State Department’s designation of the Mara Salvatrucha gang as a
Transnational Criminal Organization. See Tadevosyan v. Holder, 743 F.3d 1250,
1252-53 (9th Cir. 2014) (internal quotation marks omitted) (quoting Movsisian v.
Ashcroft, 395 F.3d 1095, 1098 (9th Cir. 2005)). There is no record evidence
suggesting that Colindres ever expressed an anti-gang political opinion or that the
gang imputed such an opinion to him. See Santos-Lemus v. Mukasey, 542 F.3d
738, 746-47 (9th Cir. 2008), abrogated on other grounds by Henriquez-Rivas v.
Holder, 707 F.3d 1081, 1093 (9th Cir. 2013).
DISMISSED IN PART, DENIED IN PART.
3