CERVANTES v. BARR (2019)

MEMORANDUM *

Petitioners petition for review of a Board of Immigration Appeals’ (“BIA”) decision dismissing their appeal of an Immigration Judge’s (“IJ”) decision for lack of jurisdiction. Petitioners appealed the IJ’s denial of Petitioners’ motion to reopen expedited removal proceedings. We dismiss the petition for lack of jurisdiction.

“We determine our own jurisdiction de novo.” Pena v. Lynch, 815 F.3d 452, 455 (9th Cir. 2016). Pursuant to 8 U.S.C. § 1252(a)(2)(A) and our decision in Pena v. Lynch, 815 F.3d 452 (9th Cir. 2016), we generally lack jurisdiction to review direct challenges to credible fear determinations in expedited removal proceedings under 8 U.S.C. § 1225(b)(1). Petitioners fail to provide us with a sufficient basis for statutory jurisdiction to review BIA’s dismissal for lack of jurisdiction of an appeal of a motion to reopen. See Pena, 815 F.3d 452; Sarmadi v. INS, 121 F.3d 1319 (9th Cir. 1997). (We do have jurisdiction to review “a colorable constitutional claim,” see Pena, 815 F.3d at 456, but Petitioners do not raise a colorable constitutional claim here.) Although short, the IJ’s decision stating that “[a] full fair hearing was conducted” adequately explained the IJ’s reasoning and addressed Petitioners’ arguments that a new hearing was needed to allow Birrueta to testify and to allow Mendoza and Birrueta to present additional evidence. See also Bartolome v. Sessions, 904 F.3d 803, 813–14 (9th Cir. 2018) (noting that in “[i]n expedited proceedings (such as [the related reasonable fear proceedings] ), IJs do not have the ability nor are they required to provide detailed decisions outlining all the claims raised by the [applicant].”). Because Petitioners fail to provide us with a sufficient basis for jurisdiction, we dismiss the petition.¹ In so holding, we do not address whether Petitioners can bring a habeas petition pursuant to 8 U.S.C. § 1252(e)(2). See Thuraissigiam v. U.S. Dep’t of Homeland Sec., 917 F.3d 1097 (9th Cir. 2019).

PETITION FOR REVIEW DISMISSED.

FOOTNOTES

1.   We note that the BIA fails to adequately explain why the BIA lacks jurisdiction. An appeal from an IJ’s denial of a motion to reopen differs from a direct appeal of an IJ’s negative credible fear finding.