Opinion
23-662
12-06-2024
YALE AUGUSTINE, Petitioner, v. MERRICK B. GARLAND, Attorney General, Respondent.
NOT FOR PUBLICATION
Submitted December 2, 2024 [**] Pasadena, California
On Petition for Review of an Order of the Board of Immigration Appeals Agency No. A092-022-066
Before: BEA, LEE, and KOH, Circuit Judges.
MEMORANDUM [*]
Petitioner Yale Augustine, a native and citizen of Belize, seeks review of the Board of Immigration Appeals' ("BIA") decision denying his motion to reopen proceedings. Because the parties are familiar with the facts, we do not recount them here, except as necessary to provide context to our ruling. We have jurisdiction pursuant to 8 U.S.C. § 1252. We deny the petition for review.
At the threshold, Augustine does not dispute that he failed to file his motion to reopen within the 90-day statutory deadline. See 8 U.S.C. § 1229a(c)(7)(C)(i). He nonetheless asked the agency to consider his belated motion based upon the BIA's discretionary authority to reopen proceedings sua sponte under 8 C.F.R. § 1003.2(a) and under the "gross miscarriage of justice" standard espoused in Matter of Farinas, 12 I. &N. Dec. 467 (BIA 1967). The BIA declined to reopen proceedings under either standard.
1. "[T]his court has jurisdiction to review Board decisions denying sua sponte reopening for the limited purpose of reviewing the reasoning behind the decisions for legal or constitutional error." Bonilla v. Lynch, 840 F.3d 575, 588 (9th Cir. 2016). Such review is "limited to those situations where it is obvious that the agency has denied sua sponte relief not as a matter of discretion, but because it erroneously believed that the law forbade it from exercising its discretion or that exercising its discretion would be futile." Lona v. Barr, 958 F.3d 1225, 1234 (9th Cir. 2020) (citations omitted).
Likewise, when a petitioner "is removable by reason of having committed a [covered] criminal offense," we have jurisdiction to review only constitutional claims or questions of law. Coria v. Garland, 114 F.4th 994, 997 (9th Cir. 2024) (citing 8 U.S.C. § 1252(a)(2)(C), (D)). As discussed below, Augustine conceded he is removable because, by his own admission, he was convicted of a covered offense. For this additional reason, we may review only constitutional claims or questions of law presented in the petition.
Neither circumstance applies here. Augustine conceded removability before the Immigration Judge ("IJ"). Augustine now contends the BIA committed legal error in holding him to his concession. We disagree. Augustine's unequivocal concession before the IJ "relieve[d] the government of the burden of producing evidence" of removability. Perez-Mejia v. Holder, 663 F.3d 403, 416 (9th Cir. 2011).
Augustine's contrary arguments are unpersuasive and cite inapposite authority. For example, Augustine does not dispute that he was convicted of Possession with Intent to Distribute Cocaine Base in violation of 21 U.S.C. § 841(a)(1) and (b)(1)(A)(iii) and sentenced to 120 months in federal prison. Nor does Augustine contest that, as a matter of law, that conviction constitutes an aggravated felony. See 8 U.S.C. § 1101(a)(43)(B) (defining "aggravated felony" to include "illicit trafficking in a controlled substance"); cf. Tellez-Ramirez v. Garland, 87 F.4th 424, 431 (9th Cir. 2023) (holding that a state analogue to § 841(a) constitutes an aggravated felony). Augustine therefore fails to identify legal or constitutional error in the BIA's decision declining to reopen proceedings sua sponte based on that concession.
2. Augustine also fails to establish that a "gross miscarriage of justice" that would justify collateral attack on his removal order occurred here. See Vega-Anguiano v. Barr, 982 F.3d 542, 547-551 (9th Cir. 2019) (permitting a collateral attack on a removal order where removal was ordered based upon an expunged conviction). Under that standard, the BIA may consider a collateral attack on a removal order if the removal order could not have "withstood judicial scrutiny under the law in effect at the time of either its issuance or its execution." Id. at 547 (emphasis omitted). Augustine challenges the validity of his removal order because, he claims, he was not properly processed at an authorized port of entry. Augustine cites no authority to support this assertion. See Greenwood v. FAA, 28 F.3d 971, 977 (9th Cir. 1994) ("We review only issues which are argued specifically and distinctly in a party's opening brief . . . and a bare assertion does not preserve a claim."). Thus, Augustine has failed to establish this is "one of the rare cases where a collateral attack is appropriate." Vega-Anguiano, 982 F.3d at 547.
3. We reject Augustine's final assertion that, under 8 C.F.R. § 1003.2(g)(3), the BIA was required to grant his motion to reopen because the Department of Homeland Security did not file an opposition brief before the BIA. Nothing in that provision requires the BIA to grant relief solely because a motion is unopposed. See 8 C.F.R. § 1003.2(a)
For the reasons stated above, we deny the petition for review. The temporary stay of removal remains in place until the mandate issues. The motion for stay of removal, Dkt. 6, is otherwise denied.
PETITION DENIED.
[*] 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).