Dubina v. Garland

NOT FOR PUBLICATION FILED UNITED STATES COURT OF APPEALS OCT 25 2023 MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS FOR THE NINTH CIRCUIT OLEG DUBINA; DIANA KOROL, No. 21-1174 Agency Nos. Petitioners, A217-001-956 A217-001-955 v. MERRICK B. GARLAND, Attorney MEMORANDUM* General, Respondent. On Petition for Review of an Order of the Board of Immigration Appeals Submitted October 5, 2023** Seattle, Washington Before: WARDLAW and M. SMITH, Circuit Judges, and HINKLE, Senior District Judge.*** Oleg Dubina, a native and citizen of Ukraine, and his wife Diana Korol, a native of Germany and a citizen of Ukraine, (collectively, “Petitioners”) petition * 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). *** The Honorable Robert L. Hinkle, United States Senior District Judge for the Northern District of Florida, sitting by designation. for review of a Board of Appeals’ (“BIA”) decision denying their motion to reopen asylum proceedings as untimely. We have jurisdiction pursuant to 8 U.S.C. § 1252, and we affirm. On February 3, 2020, the Immigration Judge (“IJ”) denied Petitioners’ asylum, withholding, and CAT claims. Petitioners expressly waived their right to appeal in that proceeding. Petitioners nevertheless appealed to the BIA, arguing that their “decision to waive an appeal was emotional, irrational, and illogical.” On March 20, 2020, the BIA “summarily dismissed” Petitioners’ appeal, holding that Petitioners did not “claim that they had any difficulty understanding the proceedings, or that they did not voluntarily waive their right to appeal.” On April 29, 2021, Petitioners filed a motion to reopen with the BIA. 1. To the extent that Petitioners’ motion to reopen sought asylum based on new evidence of changed country conditions in Ukraine, the BIA correctly concluded that the motion to reopen was not properly before it and should have been made to the IJ. Under the BIA’s “place-of-filing” rule, “a motion to reopen must be filed with the immigration judge when the Board dismisses an appeal on jurisdictional grounds and does not enter a decision on the merits.” Hernandez v. Holder, 738 F.3d 1099, 1100 (9th Cir. 2013). The BIA’s March 2020 summary dismissal was based on its lack of jurisdiction as “the Immigration Judge’s decision became administratively final upon respondent’s waiver of the right to 2 21-1174 appeal.” The BIA never entered a decision on the merits of Petitioners’ application for asylum. 2. The BIA properly construed the remainder of Petitioners’ post-judgment motion as a motion to reconsider its March 20, 2020 summary dismissal of their appeal from the IJ’s February 3, 2020 denial of their claims for asylum, removal, and for CAT relief. The BIA correctly observed that the motion squarely challenged the BIA’s “determination that [Petitioners] waived appeal of the Immigration Judge’s decision.” 3. The BIA reasonably determined that Petitioners were not entitled to equitable tolling for their untimely motion based on ineffective assistance of counsel. Appellate …

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