Juvenal Leon-Mondragon v. Merrick Garland ( 2021 )

FILED
NOT FOR PUBLICATION
APR 16 2021
UNITED STATES COURT OF APPEALS MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
JUVENAL LEON-MONDRAGON, No. 19-71774
Petitioner, Agency No. A075-093-666
v.
MEMORANDUM*
MERRICK B. GARLAND, Attorney
General,
Respondent.
On Petition for Review of an Order of the
Board of Immigration Appeals
Submitted April 14, 2021**
San Francisco, California
Before: THOMAS, Chief Judge, and R. NELSON and HUNSAKER, Circuit
Judges.
Juvenal Leon-Mondragon appeals from the denial of his motion to reopen
removal proceedings that resulted in a grant of voluntary departure in 2003. We
have jurisdiction to review denials of motions to reopen under 8 U.S.C. § 1252.
*
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).
See Flores v. Barr, 930 F.3d 1082, 1086 (9th Cir. 2019) (per curiam). But we may
consider a petition for review challenging such a denial only if the petitioner has
“exhausted all administrative remedies available to [him] as of right.” 8 U.S.C.
§ 1252(d)(1). “Exhaustion requires a non-constitutional legal claim to the court on
appeal to have first been raised in the administrative proceedings below” and “to
have been sufficient to put the BIA on notice of what was being challenged.” Bare
v. Barr, 975 F.3d 952, 960 (9th Cir. 2020) (internal citations omitted). We review
the denial of reopening for an abuse of discretion, which occurs when the denial is
“arbitrary, irrational, or contrary to law.” Flores, 930 F.3d at 1087. We “review
purely legal questions de novo.” Id. We dismiss in part and deny in part the
petition for review.
I
We lack jurisdiction to review Leon-Mondragon’s argument, raised for the
first time in his petition for review, that the Immigration Judge (“IJ”) lacked
jurisdiction over his removal proceedings because the Notice to Appear (“NTA”)
that initiated those proceedings did not identify the “address of the Immigration
Court” where the NTA was filed, as 8 C.F.R. § 1003.15(b) requires. See
Honcharov v. Barr, 924 F.3d 1293, 1296 n.2 (9th Cir. 2019) (per curiam)
(explaining that a petitioner’s failure to present a claim to the BIA “generally bars
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us, for lack of subject-matter jurisdiction, from reaching the merits” of that claim).
Accordingly, we dismiss the petition insofar as it presents an unexhausted
argument in challenging the agency’s jurisdiction.
II
The Board of Immigration Appeals (“BIA”) did not err in declining to
terminate Leon-Mondragon’s removal proceedings, where the NTA that initiated
those proceedings omitted the time, date, and place of the initial removal hearing,
but Leon-Mondragon subsequently received a notice of hearing containing that
information and “attended all removal hearings thereafter.” See Aguilar Fermin v.
Barr, 958 F.3d 887, 889 (9th Cir. 2020) (“[A]n initial NTA need not contain time,
date, and place information to vest an immigration court with jurisdiction if such
information is provided before the hearing.”); see also Karingithi v. Whitaker, 913
F.3d 1158, 1160 (9th Cir. 2019); 8 C.F.R. § 1003.18(b) (requiring the NTA to
include time, date, and place information only “where practicable”).
III
The BIA did not abuse its discretion in denying Leon-Mondragon’s motion
to reopen for the purpose of seeking cancellation of removal. Leon-Mondragon
did not file an application for cancellation of removal. See 8 C.F.R. § 1003.2(c)(1)
(“A motion to reopen proceedings for the purpose of submitting an application for
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relief must be accompanied by the appropriate application for relief and all
supporting documentation.”). Nor did he otherwise seek to demonstrate his prima
facie eligibility for that relief. He offered no evidence to establish his good moral
character, that he has not been convicted of a disqualifying offense, or that his
removal would cause one of his qualifying relatives “exceptional and extremely
unusual hardship.” Lanuza v. Love, 899 F.3d 1019, 1021–22 (9th Cir. 2018)
(citing 8 U.S.C. § 1229b(b)(1)). Thus, the agency properly declined to reopen
proceedings to permit Leon-Mondragon to pursue cancellation of removal. See
Garcia v. Holder, 621 F.3d 906, 912 (9th Cir. 2010) (“The motion [to reopen] will
not be granted unless it establishes a prima facie case for relief”—“established
when the evidence reveals a reasonable likelihood that the statutory requirements
for relief have been satisfied.” (citations and quotation marks omitted)).
IV
Leon-Mondragon has waived review of the agency’s denial of his motion to
reopen based on ineffective assistance of counsel (“IAC”). It is undisputed that
Leon-Mondragon filed his motion well after the 90-day deadline. See 8 U.S.C. §
1229a(c)(7)(C)(i). That deadline is subject to equitable tolling if the movant
shows, among other things, that “he demonstrated due diligence in discovering”
the IAC that prevented timely filing. Flores, 930 F.3d at 1085. Here, the BIA
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affirmed the denial of equitable tolling on the ground that Leon-Mondragon failed
to demonstrate such diligence in the nearly 13 years between the removal order and
his motion to reopen based on IAC. By failing to challenge this dispositive
determination, Leon-Mondragon has waived review of it. See Nguyen v. Barr, 983
F.3d 1099, 1101–02 (9th Cir. 2020); see also Bonilla v. Lynch, 840 F.3d 575, 583
(9th Cir. 2016) (“enforc[ing] the denial” of an untimely motion to reopen for
adjustment of status where there was an unexplained “six year gap . . . in [the
petitioner’s] pursuit of legal advice” and, thus, declining to “reach the Board’s
other bases for denying the motion”).
V
The BIA did not abuse its discretion in declining to reopen to permit Leon-
Mondragon to pursue a claim under the Convention Against Torture (“CAT”) on
the basis of changed country conditions. It was neither arbitrary nor irrational for
the BIA to conclude that, even if extortion, kidnapping, and violent crime have
increased in Mexico since 2003, Leon-Mondragon has not established prima facie
eligibility for CAT relief because his evidence does not demonstrate that he faces a
particularized threat of torture in Mexico. See Flores-Vega v. Barr, 932 F.3d 878,
881–82, 887 (9th Cir. 2019) (affirming the denial of CAT relief despite testimony
“that all of Mexico was unsafe due to crime and that [the petitioner] was afraid he
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would be kidnapped because people in Mexico would assume his family in the
United States had money for a ransom”); Delgado-Ortiz v. Holder, 600 F.3d 1148,
1151–52 (9th Cir. 2010) (affirming the denial of a motion to reopen to apply for
CAT relief where the petitioners feared torture as “returning Mexicans from the
United States” based on anecdotal evidence that one of their relatives and other
“people who ha[d] gone to Mexico on vacation” had been robbed and assaulted
during such visits).
PETITION DISMISSED IN PART; DENIED IN PART.
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