BRISENO GARCIA v. BARR (2019)

United States Court of Appeals, Ninth Circuit.

Enrique BRISENO GARCIA, Petitioner, v. William P. BARR, Attorney General, Respondent.

Nos. 14-73286, 15-71690, 16-70985

Decided: February 21, 2019

Before: FERNANDEZ, SILVERMAN, and WATFORD, Circuit Judges.

Zulu Ali, Law Office of Zulu Ali, Riverside, CA, for Petitioner Chief Counsel ICE, Office of the Chief Counsel, Department of Homeland Security, San Francisco, CA, Raya Jarawan, Esquire, Trial Attorney, U.S. Department of Justice, Washington, DC, Anthony Cardozo Payne, Senior Litigation Counsel, DOJ - U.S. Department of Justice, Civil Division/Office of Immigration Litigation, Washington, DC, for Respondent

MEMORANDUM **

In these consolidated petitions, Enrique Briseno Garcia, a native and citizen of Mexico, petitions for review of an immigration judge’s (“IJ”) determination that he did not have a reasonable fear of persecution or torture in Mexico (petition No. 14-73286) and the Board of Immigration Appeals’ (“BIA”) denial of his motions to reopen proceedings (petition Nos. 15-71690, 16-70985). Our jurisdiction is governed by 8 U.S.C. § 1252. In petition Nos. 14-73286 and 15-71690, we dismiss. In petition No. 16-70985, we grant and remand.

As to petition No. 14-73286, we lack jurisdiction to review the IJ’s reasonable fear determination because Briseno Garcia failed to timely file his petition for review as to that decision. See 8 U.S.C. § 1252(b)(1) (providing that petition for review must be filed within 30 days of final order of removal); see also Singh v. INS, 315 F.3d 1186, 1188 (9th Cir. 2003) (30-day deadline is “mandatory and jurisdictional”); cf. Ayala v. Sessions, 855 F.3d 1012, 1019-20 (9th Cir. 2017) (holding that BIA’s dismissal was operative agency decision, and petition for review was timely, because petitioner was misled regarding right of administrative appeal); Martinez v. Sessions, 873 F.3d 655, 660 (9th Cir. 2017) (applying Ayala). We therefore dismiss the petition for review in No. 14-73286.

As to petition No. 16-70985, the agency denied Briseno-Garcia’s motion to reopen for lack of jurisdiction to reopen proceedings. When the BIA and IJ issued their decisions, they did not have the benefit of this court’s decision in Bartolome v. Sessions, 904 F.3d 803, 815 (9th Cir. 2018) (holding that 8 C.F.R. § 1003.23(b)(1) provides an IJ with sua sponte authority to reopen “any case in which he or she has made a decision”). Thus, we grant the petition in No. 16-70985, and remand to the agency for further proceedings consistent with this disposition. See INS v. Ventura, 537 U.S. 12, 16-18, 123 S.Ct. 353, 154 L.Ed.2d 272 (2002) (per curiam). In light of our disposition, we dismiss No. 15-71690 as moot.

Each party shall bear its own costs in these petitions for review.

No. 14-73286: PETITION FOR REVIEW DISMISSED.

No. 15-71690: PETITION FOR REVIEW DISMISSED.

No. 16-70985: PETITION FOR REVIEW GRANTED; REMANDED.

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