Fidel Piedra-Alvarez v. William Barr ( 2020 )

NOT FOR PUBLICATION FILED
UNITED STATES COURT OF APPEALS NOV 23 2020
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
FIDEL PIEDRA-ALVAREZ, AKA Fidel No. 18-71943
Alvarez,
Agency No. A038-526-953
Petitioner,
v. MEMORANDUM*
WILLIAM P. BARR, Attorney General,
Respondent.
On Petition for Review of an Order of the
Board of Immigration Appeals
Submitted November 18, 2020**
Phoenix, Arizona
Before: BYBEE, MURGUIA, and BADE, Circuit Judges.
Fidel Piedra-Alvarez, a citizen and resident of Mexico, petitions for review
of the Board of Immigration Appeals’s (“BIA”) decision affirming the denial of his
motion to reopen removal proceedings under former section 212(c) of the
Immigration and Nationality Act. Because the parties are familiar with the facts,
*
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).
we do not recite them here. We have jurisdiction under 8 U.S.C. § 1252(a)(2)(D),
and we deny the petition.
The BIA properly dismissed Piedra-Alvarez’s appeal. Under INS v. St. Cyr,
relief under former section 212(c) “remains available for aliens . . . whose
convictions were obtained through plea agreements and who, notwithstanding
those convictions, would have been eligible for § 212(c) relief at the time of their
plea under the law then in effect.” 533 U.S. 289, 326 (2001). The Executive
Office for Immigration Review (“EOIR”) set a deadline of April 26, 2005 for
eligible lawful permanent residents (“LPRs”) to file special motions to reopen
pursuant to St. Cyr. Section 212(c) Relief for Aliens with Certain Criminal
Convictions Before April 1, 1997, 69 Fed. Reg. 57,826, 57,834 (Sept. 28, 2004)
(codified at 8 C.F.R. § 1003.44(h)). Piedra-Alvarez contends that although he
missed the deadline to seek relief under former section 212(c), the deadline itself is
invalid—both because the deadline is arbitrary and because the rule establishing
the deadline did not provide him constitutionally sufficient notice. Both arguments
are foreclosed by our holding in Luna v. Holder, 659 F.3d 753, 759–60 (9th Cir.
2011).
In Luna, we held that 8 C.F.R. § 1003.44(h) is “a constitutionally-sound
procedural rule.” Id. at 755. When determining whether an agency decision is
arbitrary or capricious, we examine whether the agency provided “a reasoned
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explanation for its action,” which is “not a high bar.” Judulang v. Holder, 565
U.S. 42, 45 (2011). Because the EOIR gave an explanation for the deadline when
promulgating the rule—the need to provide both the opportunity for LPRs to apply
for relief, as required by St. Cyr, 533 U.S. at 326, and “finality” in LPRs’
immigration proceedings—the agency acted lawfully in establishing the deadline.
See Section 212(c) Relief for Aliens with Certain Criminal Convictions Before
April 1, 1997, 67 Fed. Reg. 52,627, 52,628 (Aug. 13, 2002). To the extent that the
deadline was arbitrary, all deadlines are arbitrary. See United States v. Boyle, 469
U.S. 241, 249 (1985) (“Deadlines are inherently arbitrary; fixed dates, however,
are often essential to accomplish necessary results.”).
Moreover, Piedra-Alvarez’s contention that 8 C.F.R. § 1003.44impermissibly treats two groups of removable LPRs differently based only on
when the LPR was placed in removal proceedings does not invalidate the rule
under Judulang, 565 U.S. at 55. It is true that LPRs convicted at the same time as
Piedra-Alvarez but placed in removal proceedings after the regulatory deadline
would have a later opportunity to seek relief under former section 212(c). See 8
C.F.R. § 1212.3(e) (providing that LPRs who pled guilty to certain crimes before
April 1, 1997 can apply for relief under former section 212(c) during the pendency
of their removal proceedings). But this does not make the deadline arbitrary under
Judulang, which involved substantive requirements for relief from removal, rather
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than a procedural requirement like a deadline. See 565 U.S. at 55, 64 (detailing the
so-called “comparable-grounds” rule for evaluating an alien’s substantive
eligibility for relief under former section 212(c)).
Finally, as we explained in Luna, publication of the deadline in the Federal
Register provided constitutionally sufficient notice of the availability of relief. 659
F.3d at 759. Piedra-Alvarez contends he is meaningfully different from the
petitioner in Luna because he has lived outside the country since his removal
in 1998, and therefore lacked the ability to discover the change in immigration law
after St. Cyr. However, Piedra-Alvarez cites no authority that would require the
federal government to give him individual notice of the change in rules. In
general, publication in the Federal Register constitutes adequate notice of the
availability of relief in the immigration context, except in cases where “imminent
government action . . . directly affects [a] party’s rights and that party’s interest in
the government action is more than ‘purely speculative.’” Williams v. Mukasey,
531 F.3d 1040, 1042 (9th Cir. 2008) (quoting Covelo Indian Cmty. v. Fed. Energy
Regul. Comm’n, 895 F.2d 581, 588 (9th Cir. 1990) (per curiam)). Here, Piedra-
Alvarez has failed to show that the government had more than “speculative
knowledge” that he was specifically entitled to relief. See id. at 1042–43. In fact,
Piedra-Alvarez was facially ineligible for relief under section 212(c) as it existed
when he pled guilty because he was removed pursuant to an aggravated felony and
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a controlled substance violation. See Antiterrorism and Effective Death Penalty
Act of 1996, Pub. L. No. 104-132, § 440(d), 110 Stat. 1214 (1996). Therefore, the
government was not required to provide more than notice by publication in Piedra-
Alvarez’s case.
DENIED.
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