Misael Sanchez-Lopez v. Merrick Garland

NOT FOR PUBLICATION FILED UNITED STATES COURT OF APPEALS FEB 13 2023 MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS FOR THE NINTH CIRCUIT MISAEL SANCHEZ-LOPEZ, No. 18-72767 Petitioner, Agency No. A095-766-763 v. MEMORANDUM* MERRICK B. GARLAND, Attorney General, Respondent. On Petition for Review of an Order of the Board of Immigration Appeals Submitted February 7, 2023** Pasadena, California Before: BOGGS,*** IKUTA, and DESAI, Circuit Judges. Petitioner Misael Sanchez-Lopez, a native and citizen of Mexico, petitions this court to review the Board of Immigration Appeals (“BIA”) decision denying his * 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 Danny J. Boggs, United States Circuit Judge for the U.S. Court of Appeals for the Sixth Circuit, sitting by designation. motion to reopen removal proceedings. We have jurisdiction under 8 U.S.C. § 1252. The BIA’s denial of a motion to reopen is reviewed under an abuse of discretion standard. Greenwood v. Garland, 36 F.4th 1232, 1235 (9th Cir. 2022). We must uphold the BIA’s decision unless it is “arbitrary, irrational, or contrary to law.” Id. The BIA’s factual findings are reviewed for substantial evidence. Dong v. Garland, 50 F.4th 1291, 1296 (9th Cir. 2022). After applying these standards to the record before us, we reject all of Petitioner’s arguments for the following reasons. First, Mr. Sanchez-Lopez argues the immigration court lacked subject-matter jurisdiction over his removal proceedings under Pereira v. Sessions, 138 S. Ct. 2105 (2018), because his Notice to Appear (“NTA”) did not specify the time and place of his hearing before the immigration judge. This challenge is unexhausted because Petitioner failed to raise it before the BIA. See 8 U.S.C. § 1252(d)(1) (“A court may review a final order of removal only if . . . the alien has exhausted all administrative remedies available to the alien as of right[.]”); Ruiz-Colmenares v. Garland, 25 F.4th 742, 748 (9th Cir. 2022) (“We lack jurisdiction to consider Petitioner’s argument because it was not raised before the agency.”). Moreover, this argument is foreclosed by our en banc holding in United States v. Bastide-Hernandez, 39 F.4th 1187 (9th 2 18-72767 Cir. 2022).1 In Bastide-Hernandez, we held that a defective NTA does not deprive immigration courts of subject-matter jurisdiction. Id. at 1191. Thus, the immigration court had subject-matter jurisdiction over Mr. Sanchez-Lopez’s proceedings despite any defects in the NTA. Second, Mr. Sanchez-Lopez argues he is eligible for asylum and withholding of removal because past threats or harm directed at members of his extended family establish he will be persecuted in Mexico if removed. A motion to reopen must ordinarily be filed within ninety days of the final order of removal. 8 U.S.C. § 1229a(c)(7)(C)(i); see also 8 C.F.R. § 1003.2(c)(2). However, the 90-day deadline does not apply if the motion to reopen is (1) to apply for asylum under § 208 …

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