Jose Pozo-Rivas v. Merrick Garland ( 2022 )

NOT FOR PUBLICATION FILED
UNITED STATES COURT OF APPEALS JUL 5 2022
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
JOSE ALEXANDER POZO-RIVAS, No. 20-70813
Petitioner, Agency No. A205-869-812
v.
MEMORANDUM*
MERRICK B. GARLAND, Attorney
General,
Respondent.
On Petition for Review of an Order of the
Board of Immigration Appeals
Submitted June 8, 2022**
Seattle, Washington
Before: GILMAN,*** IKUTA, and MILLER, Circuit Judges.
Jose Alexander Pozo-Rivas, a citizen and native of El Salvador, petitions this
court for review of the Board of Immigration Appeals’ (BIA’s) dismissal of 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 Ronald Lee Gilman, United States Circuit Judge for
the U.S. Court of Appeals for the Sixth Circuit, sitting by designation.
appeal from an immigration judge’s (IJ’s) denial of his motion to sua sponte reopen
removal proceedings pursuant to 8 C.F.R. § 1003.2(a). We have jurisdiction under
8 U.S.C. § 1252, and we deny the petition.
“This court generally lacks jurisdiction to review a decision by the [BIA] not
to exercise its sua sponte authority to reopen removal proceedings.” Menendez-
Gonzalez v. Barr, 929 F.3d 1113, 1115 (9th Cir. 2019) (citation omitted). But that
lack of jurisdiction is not absolute: We have “jurisdiction to review denial of a
motion to reopen sua sponte only ‘for the limited purpose of reviewing the reasoning
behind the decisions for legal or constitutional error.’” Id. (quoting Bonilla v. Lynch,
840 F.3d 575, 588 (9th Cir. 2016)).
Pozo-Rivas argues that two constitutional violations occurred in his case.
First, he argues that even though he missed the deadline to appeal the IJ’s underlying
decision to deny his application for asylum relief and protection under the
Convention Against Torture, his due process rights were violated by the denial of
his motion to reopen because “he did not fully understand the appellate deadline and
procedures.” But his misunderstanding was due to his own mistake; it was not the
result of any action by the court or counsel.
We have held on numerous occasions that due process violations do not occur
where an alien misses a deadline because of his own mistake. See, e.g., Zetino v.
Holder, 622 F.3d 1007, 1013-14 (9th Cir. 2010). Pozo-Rivas does not dispute that
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the IJ made him aware of the applicable deadline, nor does he point to any ineffective
assistance of counsel. He therefore cannot “point to anyone but himself to explain
the untimeliness of his [appeal],” so “[w]e cannot conclude that by missing the
deadline[,] . . . he somehow deprived himself of due process.” Id.Second, Pozo-Rivas contends that the BIA violated his due process rights by
failing to adequately consider his argument regarding the IJ’s denial of his motion
to reopen. But Pozo-Rivas’s due process argument was addressed in the IJ’s written
opinion, which was expressly adopted by the BIA. The BIA’s opinion also added
reasoning of its own by rejecting Pozo-Rivas’s reliance on Dearinger ex rel. Volkova
v. Reno, 232 F.3d 1042 (9th Cir. 2002), because Pozo-Rivas had made no allegations
that his failure to timely appeal was due to the ineffective assistance of counsel. (Id.)
“Where, as here, the BIA has reviewed the IJ’s decision and incorporated portions
of it as its own, we treat the incorporated parts of the IJ’s decision as the BIA’s.”
Molina-Estrada v. INS, 293 F.3d 1089, 1093 (9th Cir. 2002).
“[T]he BIA does not have to write an exegesis on every contention. What is
required is merely that it consider the issues raised and announce its decision in terms
sufficient to enable a reviewing court to perceive that it has heard and thought and
not merely reacted.” Rodriguez-Jimenez v. Garland, 20 F.4th 434, 439 (9th
Cir. 2021) (quoting Najmabadi v. Holder, 597 F.3d 983, 990 (9th Cir. 2010)). The
combination of the IJ’s decision and the additional reasoning from the BIA makes
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clear that the BIA “heard and thought about” Pozo-Rivas’s due process argument,
which is all that is required. See id.The petition for review is DENIED.
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