Victor Mendoza Medina v. Eric Holder, Jr. , 542 F. App'x 621 ( 2013 )

FILED
NOT FOR PUBLICATION OCT 17 2013
MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
VICTOR HUGO MENDOZA MEDINA, No. 10-73583
Petitioner, Agency No. A013-210-491
v.
MEMORANDUM*
ERIC H. HOLDER, Jr., Attorney General,
Respondent.
VICTOR HUGO MENDOZA MEDINA, No. 11-70727
Petitioner, Agency No. A013-210-491
v.
ERIC H. HOLDER, Jr., Attorney General,
Respondent.
VICTOR HUGO MENDOZA MEDINA, No. 11-71344
Petitioner, Agency No. A013-210-491
v.
*
This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
ERIC H. HOLDER, Jr., Attorney General,
Respondent.
On Petition for Review of an Order of the
Board of Immigration Appeals
Argued and Submitted September 9, 2013
San Francisco, California
Before: SCHROEDER and BYBEE, Circuit Judges, and BATTAGLIA, District
Judge.**
Victor Medina, a native and citizen of Bolivia, petitions for review of three
decisions by the Board of Immigration Appeals (“BIA”). We grant in part, dismiss
in part, and deny in part the petitions for review and remand to the BIA.
In December 2007, the BIA affirmed a decision by an Immigration Judge
(“IJ”) concluding that Medina was not eligible for cancellation of removal under 8
U.S.C. § 1229b(a) because he was convicted of an aggravated felony. While
residing in the United States as a lawful permanent resident, Medina was twice
convicted of misdemeanor possession of crack cocaine. The BIA deemed his
second conviction an aggravated felony under its decision in In re Carachuri-
Rosendo, 24 I. & N. Dec. 382 (B.I.A. 2007) (en banc).
**
The Honorable Anthony J. Battaglia, District Judge for the U.S.
District Court for the Southern District of California, sitting by designation.
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After being removed to Bolivia, Medina attempted to reenter the United
States. While he was detained in Arizona, the United States Supreme Court
reversed the BIA’s decision in Carachuri-Rosendo, which was the basis for the
BIA’s determination in December 2007 that Medina was not eligible for
cancellation of removal. See Carachuri-Rosendo v. Holder, 130 S. Ct. 2577,
2589–90 (2010).
In November 2010, the BIA noted that the Court’s decision in Carachuri-
Rosendo constituted a “material change[] in the law,” but declined to reopen
Medina’s 2007 removal proceedings sua sponte because of the “departure bar” in 8
C.F.R. § 1003.2(d). Under the BIA’s interpretation of the departure bar, it is
precluded from reopening prior removal proceedings—whether on motion or sua
sponte—after the alien has been removed from the United States pursuant to those
proceedings. See Matter of Armendarez-Mendez, 24 I. & N. Dec. 646, 648 (B.I.A.
2008). That interpretation is inconsistent with this court’s precedent, which
provides that the BIA is not jurisdictionally barred from determining whether to
reopen prior proceedings if the alien was involuntarily removed from the United
States. See Coyt v. Holder, 593 F.3d 902, 907 (9th Cir. 2010); Reynoso-Cisneros
v. Gonzales, 491 F.3d 1001, 1002 (9th Cir. 2007) (per curiam); Lin v. Gonzales,
473 F.3d 979, 981–82 (9th Cir. 2007). In its brief, the government argued that we
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should remand to the BIA with instructions to determine whether to apply Ninth
Circuit or Fifth Circuit law in determining whether 8 C.F.R. § 1003.2(d) bars the
BIA from considering whether to reopen the 2007 proceedings. At argument, the
government acknowledged that the Fifth Circuit has now also held that 8 C.F.R. §
1003.2(d) does not deprive the BIA of jurisdiction to entertain whether to reopen
prior removal proceedings after the alien has been removed. See Garcia-Carias v.
Holder, 697 F.3d 257, 264 (5th Cir. 2012); Lari v. Holder, 697 F.3d 273, 277 (5th
Cir. 2012).
We grant the portion of Medina’s petition that challenges the BIA’s reliance
on the departure bar in declining whether to consider reopening his 2007 removal
proceedings. We remand to the BIA so that it may decide whether to reopen the
2007 removal proceedings without relying on its interpretation of 8 C.F.R. §
1003.2(d).
Medina further urges this court to order the BIA to invalidate his 2007
removal proceedings on the basis that they resulted in a “gross miscarriage of
justice” because the IJ denied Medina’s fourth request for a continuance to retain
an attorney and applied Fifth Circuit law rather than Ninth Circuit law in
determining that Medina did not qualify for cancellation of removal. We lack
jurisdiction to review this claim because Medina never raised these arguments
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before the IJ or the BIA in the proceedings that are the subject of the petition for
review. See Barron v. Ashcroft, 358 F.3d 674, 678 (9th Cir. 2004). This court has
permitted aliens to collaterally attack prior removal proceedings in subsequent
removal proceedings, which are in turn subject to review by this court. See, e.g.,
Garcia de Rincon v. D.H.S., 539 F.3d 1133, 1138 (9th Cir. 2008); Ramirez-Juarez
v. I.N.S., 633 F.2d 174, 175–76 (9th Cir. 1980). But there is no support for the
proposition that an alien can collaterally attack a prior removal proceeding by
raising arguments before this court that have never been presented to the BIA.
Accordingly, we dismiss Medina’s petition for review to the extent that it
collaterally attacks his 2007 removal proceedings on the grounds that they
constituted a “gross miscarriage of justice.”
Finally, Medina contends that the BIA erred by affirming the IJ’s decision
that he does not qualify for asylum. Specifically, Medina argues that the BIA
failed to address his assertion that he faces a well-founded fear of future
persecution in Bolivia on account of his status as an HIV-positive individual. In its
November 2010 decision, the BIA explained that the IJ found that Medina “had not
suffered past persecution or shown a well-founded fear of future persecution” and
observed that the events that Medina offered in support of the claim did not rise to
the level of persecution. Even if the BIA’s analysis does not address with
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particularity Medina’s fear of future persecution on account of his HIV-positive
status, this court may look to the reasoning in the IJ’s opinion under these
circumstances. See Avetova-Elisseva v. I.N.S., 213 F.3d 1192, 1197 (9th Cir. 2000)
(“[T]he lack of analysis that the BIA opinion devoted to the issue at hand—its
simple statement of a conclusion—also suggests that the BIA gave significant
weight to the IJ’s findings. In light of that ambiguity, we will also look to the IJ’s
oral decision as a guide to what lay behind the BIA’s conclusion.”). The IJ
expressly rejected the claim at issue here when it concluded that “[t]he Court also
does not find that the respondent has established a well-founded fear of future
persecution” before examining the specific instances of mistreatment that formed
the basis of Medina’s application for asylum. Substantial evidence supports the
conclusion reached by the IJ and the BIA that Medina does not qualify for asylum.
As a result, we deny Medina’s petition for review with respect to this claim.
Each party shall bear its own costs for this petition for review.
The petition for review is GRANTED in part, DISMISSED in part,
DENIED in part, and REMANDED.
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