Osama Farah v. William Barr

FILED NOT FOR PUBLICATION DEC 2 2020 UNITED STATES COURT OF APPEALS MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS FOR THE NINTH CIRCUIT OSAMA FARAH, No. 19-70998 Petitioner, Agency No. A202-179-331 v. MEMORANDUM* WILLIAM P. BARR, Attorney General, Respondent. On Petition for Review of an Order of the Board of Immigration Appeals Argued and Submitted November 13, 2020 Pasadena, California Before: CHRISTEN and WATFORD, Circuit Judges, and ROSENTHAL,** Chief District Judge. Osama Farah, a native and citizen of Syria, petitions for review of the Board of Immigration Appeals’ (BIA) decision denying his motion to reopen and dismissing his appeal of the Immigration Judge’s (IJ) order declining to reopen. * This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3. ** The Honorable Lee H. Rosenthal, Chief United States District Judge for the Southern District of Texas, sitting by designation. We have jurisdiction pursuant to 8 U.S.C. § 1252(a), and we deny the petition in part and dismiss in part. Because the parties are familiar with the facts, we recite only those necessary to decide the petition. We review the BIA’s denial of a motion to reopen for abuse of discretion. Lara-Torres v. Ashcroft, 383 F.3d 968, 972 (9th Cir. 2004). The BIA does not abuse its discretion “unless it acted arbitrarily, irrationally, or contrary to law.” Id. (quoting Lo v. Ashcroft, 341 F.3d 934, 937 (9th Cir. 2003)). Questions of law and claims of due process violations are reviewed de novo. Id. (citing Lopez v. INS, 184 F.3d 1097, 1099 (9th Cir. 1999); Castillo-Perez v. INS, 212 F.3d 518, 523 (9th Cir. 2000)). Factual findings are reviewed for substantial evidence. Bhasin v. Gonzales, 423 F.3d 977, 983 (9th Cir. 2005) (citing Sharma v. INS, 89 F.3d 545, 547 (9th Cir. 1996)). 1. Farah does not specifically contest the BIA’s determination that his motion to reopen was untimely. Accordingly, he has waived his claim that the 90- day time limit to file a motion to reopen should be equitably tolled. 8 U.S.C. § 1229a(c)(7)(C)(i); see Singh v. Ashcroft, 361 F.3d 1152, 1157 n.3 (9th Cir. 2004) (“Issues not raised in an appellant’s opening brief are typically deemed waived.”); Martinez-Serrano v. INS, 94 F.3d 1256, 1259–60 (9th Cir. 1996). Though the BIA concluded Farah’s motion was untimely, it addressed the merits of his motion and 2 explained it would have denied the motion on the merits. The BIA did not abuse its discretion by denying his motion to reopen. 2. “Although not subject to the full range of constitutional protections, immigration proceedings must conform to the Fifth Amendment’s due process requirement.” Pangilinan v. Holder, 568 F.3d 708, 709 (9th Cir. 2009). The record supports the Board’s findings that Farah had ample opportunity to present evidence and argument relating to his CAT claim to the IJ and BIA before the IJ’s December 2015 decision and the BIA’s August 2016 decision. Farah testified on his own behalf, and submitted substantial documentary evidence for the ...

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