Alfredo Jimenez Garcia v. Jeffrey Rosen ( 2020 )

FILED
NOT FOR PUBLICATION
DEC 31 2020
UNITED STATES COURT OF APPEALS MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
ALFREDO JIMENEZ GARCIA, No. 18-72455
Petitioner, Agency No. A093-417-695
v.
MEMORANDUM*
JEFFREY A. ROSEN, Acting Attorney
General,
Respondent.
On Petition for Review of an Order of the
Board of Immigration Appeals
Argued and Submitted December 11, 2020
Seattle, Washington
Before: BERZON and MILLER, Circuit Judges, and GLEASON,** District Judge.
Petitioner Alfredo Jimenez Garcia petitions for review of the Board of
Immigration Appeals (“BIA”)’s dismissal of his appeal from the immigration judge
(“IJ”)’s denial of administrative closure. The BIA dismissed his appeal as moot in
light of the Attorney General’s intervening decision in Matter of Castro-Tum, which
*
This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
**
The Honorable Sharon L. Gleason, United States District Judge for
the District of Alaska, sitting by designation.
held that neither the BIA nor IJs have general authority to administratively close
proceedings. 27 I. & N. Dec. 271, 274, 293 (A.G. 2018). Petitioner contends that
Castro-Tum violates due process and is void as a matter of law; he maintains that in
assigning to himself and deciding Castro-Tum, former Attorney General Sessions was
improperly motivated by his personal bias against undocumented aliens.1 We have
jurisdiction under 8 U.S.C. § 1252, and we deny the petition.
“We review de novo the BIA’s determination of purely legal questions and
claims of due process violations in immigration proceedings.” Gonzalez-Caraveo v.
Sessions, 882 F.3d 885, 889 (9th Cir. 2018). “A neutral judge is one of the most basic
due process protections.” Reyes-Melendez v. INS, 342 F.3d 1001, 1006 (9th Cir.
2003) (quoting Castro-Cortez v. INS, 239 F.3d 1037, 1049 (9th Cir. 2001)). However,
“[a]s a predicate to obtaining relief for a violation of procedural due process rights in
immigration proceedings, an alien must show that the violation prejudiced him.” Id.1
In his reply brief, petitioner argues that this Court should adopt the Fourth
Circuit’s reasoning in Romero v. Barr, which issued after he filed his opening brief
and held that federal regulations unambiguously confer upon IJs and the BIA the
general authority to administratively close cases. 937 F.3d 282, 297 (4th Cir.
2019). We decline to consider in this case whether Castro-Tum is substantively
correct. Petitioner did not raise this question in his opening brief. “It is well
established in this circuit that the general rule is that appellants cannot raise a new
issue for the first time in their reply briefs.” Martinez-Serrano v. INS, 94 F.3d
1256, 1259 (9th Cir. 1996) (alteration omitted) (quoting Eberle v. City of Anaheim,
901 F.2d 814, 818 (9th Cir. 1990)).
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at 1007 (quoting Ramirez-Alejandre v. Ashcroft, 320 F.3d 858, 875 (9th Cir. 2003)).
Petitioner must present “plausible scenarios in which the outcome of the proceedings
would have been different, absent the constitutional violation.” Walters v. Reno, 145
F.3d 1032, 1044 (9th Cir. 1998).
Assuming, without deciding, that petitioner has suffered a due process
violation, we hold that he has failed to establish prejudice. In denying the motion for
administrative closure, the IJ concluded that petitioner did not meet the required
criteria set forth in Matter of Avetisyan, 25 I. & N. Dec. 688 (B.I.A. 2012). Petitioner
does not address the IJ’s conclusion or argue that his case was eligible for
administrative closure under the then-governing standard. Accordingly, he has not
demonstrated prejudice by showing how the outcome of his agency proceedings could
have been affected by the alleged due process violation or presented plausible
scenarios in which the outcome would have been different. See Gonzalez-Caraveo,
882 F.3d at 894. Because petitioner does not show prejudice, his procedural due
process claim fails.
PETITION DENIED.
3