Armenaki Simonian v. Merrick Garland ( 2021 )

NOT FOR PUBLICATION FILED
UNITED STATES COURT OF APPEALS MAR 19 2021
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
ARMENAKI SIMONIAN, No. 17-72848
Petitioner, Agency No. A070-076-796
v.
MEMORANDUM*
MERRICK B. GARLAND, Attorney
General,
Respondent.
On Petition for Review of an Order of the
Board of Immigration Appeals
Submitted March 16, 2021**
Before: GRABER, R. NELSON, and HUNSAKER, Circuit Judges.
Armenaki Simonian, a native and citizen of Georgia, petitions for review of
the Board of Immigration Appeals’ (“BIA”) order denying his motion to reopen
deportation proceedings. Our jurisdiction is governed by 8 U.S.C. § 1252. We
review for abuse of discretion the denial of a motion to reopen. Bonilla v. Lynch,
*
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).
840 F.3d 575, 581 (9th Cir. 2016). We review de novo questions of law, id., and
due process claims in immigration proceedings, Jiang v. Holder, 754 F.3d 733, 738
(9th Cir. 2014). We deny in part and dismiss in part the petition for review.
The BIA did not abuse its discretion in denying Simonian’s motion to
reopen as untimely, where he filed the motion more than 14 years after his final
order of deportation and failed to show he qualifies for any regulatory exception to
the filing deadline. See 8 C.F.R. § 1003.2(c)(2)-(3). To the extent Simonian
contends the deadline for his untimely motion to reopen should have been
equitably tolled, we lack jurisdiction to consider the contention. See Barron v.
Ashcroft, 358 F.3d 674, 677-78 (9th Cir. 2004) (court lacks jurisdiction to review
claims not presented to the agency).
Simonian’s contention that the BIA’s decision not to reopen proceedings sua
sponte was premised on an erroneous or incomplete assessment of the applicable
law on suspension of deportation fails. Cf. 8 C.F.R. § 1240.61(a)(3) (to be eligible
petitioner must have entered the United States on or before December 31, 1990);
Ram v. INS, 243 F.3d 510, 517, 517 n.9 (9th Cir. 2001) (describing which
petitioners qualify under transitional rule exemption from the stop-time rule). In
the absence of any legal or constitutional error, we lack further jurisdiction to
review the BIA’s decision not to reopen proceedings sua sponte. See Bonilla, 840
F.3d at 588 (“[T]his court has jurisdiction to review Board decisions denying sua
2 17-72848
sponte reopening for the limited purpose of reviewing the reasoning behind the
decisions for legal or constitutional error.”).
Finally, Simonian’s contention that Pereira v. Sessions, 138 S. Ct. 2105(2018), might have jurisdictional ramifications or otherwise affect his case also
fails. See 8 U.S.C. § 1252b(a)(2) (1988), amended by 8 U.S.C. § 1252b(a)(2)
(Supp. III 1992) (permitting notice of the time and place at which proceedings will
be held to be given “in the order to show cause or otherwise”); see also Aguilar
Fermin v. Barr, 958 F.3d 887, 895 (9th Cir. 2020) (“the lack of time, date, and
place in the NTA sent to [petitioner] did not deprive the immigration court of
jurisdiction over [the] case”).
PETITION FOR REVIEW DENIED in part; DISMISSED in part.
3 17-72848