Osio-Gatica v. Barr

18-1 Osio-Gatica v. Barr BIA Ruehle, IJ A205 021 921 UNITED STATES COURT OF APPEALS FOR THE SECOND CIRCUIT SUMMARY ORDER RULINGS BY SUMMARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT. CITATION TO A SUMMARY ORDER FILED ON OR AFTER JANUARY 1, 2007, IS PERMITTED AND IS GOVERNED BY FEDERAL RULE OF APPELLATE PROCEDURE 32.1 AND THIS COURT=S LOCAL RULE 32.1.1. WHEN CITING A SUMMARY ORDER IN A DOCUMENT FILED WITH THIS COURT, A PARTY MUST CITE EITHER THE FEDERAL APPENDIX OR AN ELECTRONIC DATABASE (WITH THE NOTATION “SUMMARY ORDER”). A PARTY CITING TO A SUMMARY ORDER MUST SERVE A COPY OF IT ON ANY PARTY NOT REPRESENTED BY COUNSEL. At a stated term of the United States Court of Appeals for the Second Circuit, held at the Thurgood Marshall United States Courthouse, 40 Foley Square, in the City of New York, on the 13th day of August, two thousand nineteen. PRESENT: JON O. NEWMAN, DENNIS JACOBS, PETER W. HALL, Circuit Judges. _____________________________________ JUAN RAUL OSIO-GATICA, Petitioner, v. 18-1 NAC WILLIAM P. BARR, UNITED STATES ATTORNEY GENERAL, Respondent. _____________________________________ FOR PETITIONER: Stephen K. Tills, Orchard Park, NY. FOR RESPONDENT: Joseph H. Hunt, Assistant Attorney General; Justin R. Markel, Senior Litigation Counsel; Brooke M. Maurer, Trial Attorney, Office of Immigration Litigation, United States Department of Justice, Washington, DC. UPON DUE CONSIDERATION of this petition for review of a Board of Immigration Appeals (“BIA”) decision, it is hereby ORDERED, ADJUDGED, AND DECREED that the petition for review is DENIED. Petitioner Juan Raul Osio-Gatica, a native and citizen of Mexico, seeks review of a December 7, 2017, decision of the BIA affirming a July 14, 2017, decision of an Immigration Judge (“IJ”) denying Osio-Gatica’s motion to reopen his removal proceedings. In re Juan Raul Osio-Gatica, No. A205 021 921 (B.I.A. Dec. 7, 2017), aff’g No. A205 021 921 (Immig. Ct. Buffalo Jul. 14, 2017). We assume the parties’ familiarity with the underlying facts and procedural history in this case. As an initial matter, Osio-Gatica’s argument that the agency lacked jurisdiction over his removal proceedings because his notice to appear did not include a hearing date is foreclosed by Banegas Gomez v. Barr, 922 F.3d 101, 110-12 (2d Cir. 2019). As to his motion to reopen, we have considered both the IJ’s and the BIA’s decisions “for the sake of completeness.” Wangchuck v. Dep’t of Homeland Sec., 448 F.3d 524, 528 (2d Cir. 2006). We review the agency’s denial of a motion to reopen for abuse of discretion. Ali v. Gonzales, 448 F.3d 2 515, 517 (2d Cir. 2006). The agency did not abuse its discretion in denying the motion because it was untimely and the basis for the motion—Osio-Gatica’s partner’s pregnancy— could have been raised previously. First, the agency properly denied Osio-Gatica’s motion as untimely filed. A “motion to reopen shall be filed within 90 days of the date of entry of a final administrative order of removal.” 8 U.S.C. § 1229a(c)(7)(C)(i); 8 C.F.R. § 1003.23(b)(1). The IJ granted Osio-Gatica voluntary departure on February ...

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