NOT FOR PUBLICATION FILED

UNITED STATES COURT OF APPEALS DEC 10 2024

MOLLY C. DWYER, CLERK

U.S. COURT OF APPEALS

FOR THE NINTH CIRCUIT

GONZALO HERIBERTO BARRERA- No. 18-70550

LANDAVERDE, 19-71514

Petitioner, Agency No. A076-376-815

v.

MEMORANDUM*

MERRICK B. GARLAND, Attorney General,

Respondent.

On Petition for Review of an Order of the Board of Immigration Appeals

Submitted December 6, 2024** Pasadena, California

Before: BEA, LEE, and KOH, Circuit Judges.

Petitioner Gonzalo Heriberto Barrera-Landaverde, a native and citizen of El

Salvador, was ordered removed in abstentia by an Immigration Judge (“IJ”) on

December 20, 2016. Petitioner now seeks review of two orders of the Board of

* 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). Immigration Appeals (“BIA”) denying two successive motions he filed to reopen

his case.

Where, as here, the BIA issues its own decision and does not adopt the IJ’s

decision, the Court reviews only the BIA’s decision. Aden v. Holder, 589 F.3d

1040, 1043 (9th Cir. 2009). The BIA’s denial of a motion to reopen is reviewed for

abuse of discretion. Hernandez-Galand v. Garland, 996 F.3d 1030, 1034 (9th Cir.

2021). A decision is an abuse of discretion if it is “arbitrary, irrational, or contrary

to law.” Bonilla v. Lynch, 840 F.3d 575, 581 (9th Cir. 2016) (citation omitted).

Legal and constitutional questions, including the sufficiency of a Notice to Appear

(“NTA”), are reviewed de novo. See Hernandez-Mancilla v. Holder, 633 F.3d

1182, 1184 (9th Cir. 2011).

Except as otherwise noted, we have jurisdiction pursuant to 8 U.S.C. § 1252.

We deny the petition in case no. 19–71514. We dismiss in part for lack of

jurisdiction and deny in part the petition in case no. 18–70550.

1. An order of in abstentia removal may, as relevant here, “be rescinded

only . . . upon a motion to reopen filed within 180 days after the date of the order

of removal if the alien demonstrates that the failure to appear was because of

exceptional circumstances.” 8 U.S.C. § 1229a(b)(5)(C)(i). Petitioner filed his first

motion to reopen on August 8, 2017, approximately eight months after he was

ordered removed in abstentia on December 20, 2016, and after he was detained by

2 Immigration and Customs Enforcement (“ICE”). The IJ accordingly found his

motion was untimely because it was outside of the 180-day deadline set by the

statute. The BIA affirmed on the ground that his motion was untimely.1

Petitioner argues the BIA abused its discretion in failing to properly consider

his argument that the 180-day deadline should have been equitably tolled.

Although our review of the BIA’s decision is generally limited to the reasons the

agency has given, “the [BIA] does not have to write an exegesis on every

contention.” Najmabadi v. Holder, 597 F.3d 983, 990 (9th Cir. 2010) (quoting

Lopez v. Ashcroft, 366 F.3d 799, 807 n. 6 (9th Cir.2004)). Rather, “[w]hat is

required is merely that [the BIA] consider the issues raised, and announce its

decision in terms sufficient to enable a reviewing court to perceive that it has heard

and thought and not merely reacted.” Id. “[A] reviewing court must ‘uphold’ even

‘a decision of less than ideal clarity if the agency’s path may reasonably be

discerned.’” Garland v. Ming Dai, 593 U.S. 357, 369 (2021) (quoting Bowman

Transp., Inc. v. Arkansas-Best Freight Sys., Inc., 419 U.S. 281, 286 (1974)).

Here, the BIA did not explicitly discuss equitable tolling, but the record

suggests it adequately considered the issue. The BIA found petitioner’s motion to

1 Petitioner argues that the BIA abused its discretion in finding he had not established exceptional circumstances warranting recission of the removal order. However, this argument is irrelevant, because the BIA never reached the exceptional circumstances issue, instead relying exclusively on the untimeliness of petitioner’s motion to reopen in denying it.

3 reopen “untimely,” wrote it “consider[ed] . . . the record as a whole,” and held that

petitioner “presented insufficient evidence of circumstances that would justify a

discretionary grant of his untimely motion to reopen and the extraordinary remedy

of reopening his removal proceedings sua sponte.” Before the BIA, petitioner

advanced his equitable tolling and sua sponte reopening arguments in the same,

short section of his brief, and relied on the same evidence and arguments for both.

Therefore, implicit in the above findings by the BIA was a rejection of petitioner’s

equitable tolling argument.

Further, petitioner’s equitable tolling argument before the BIA was

extremely perfunctory. Petitioner advanced this argument in barely four sentences,

cited to just a single case—which was not factually on-point—and did not offer

any authority suggesting that equitable tolling was appropriate in petitioner’s

circumstances. Given how weak the argument was, the reasons why the BIA

rejected it “are reasonably discernible” and the BIA was not required to “use any

particular words” in doing so. Ming Dai, 593 U.S. at 369; see also Park v.

Garland, 72 F.4th 965, 977 (9th Cir. 2023) (“We do not require that the agency

engage in a lengthy discussion of every contention raised by a petitioner.” (internal

quotation marks omitted)).

Even if the BIA did not adequately consider petitioner’s equitable tolling

argument, remand to the BIA would be unnecessary, because we “have no doubt

4 that the BIA would reach the same decision if we asked it to focus more closely

on” the issue. Najmabadi, 597 F.3d at 991; see also see Gutierrez-Zavala v.

Garland, 32 F.4th 806, 810 (9th Cir. 2022) (stating that “there is an ‘exception [to

the remand requirement] based upon subjective certainty with respect to the

outcome of the agency decision upon remand” (quoting Arnold v. Morton, 529

F.2d 1101, 1105 (9th Cir. 1976))).

“A petitioner seeking equitable tolling bears the burden of establishing two

elements: (1) that he has been pursuing his rights diligently, and (2) that some

extraordinary circumstance stood in his way and prevented timely filing.” Bent v.

Garland, 115 F.4th 934, 941 (9th Cir. 2024) (citation omitted). Petitioner concedes

that he was aware of the date of his December 20, 2016 hearing, but chose not to

attend. At the point that he failed to attend the hearing, he was on notice of the

need to file a motion to reopen. Petitioner does not argue that he was unaware of

the 180-day deadline to file a motion to reopen. And yet, petitioner failed to do so

until two months after the 180-day deadline expired and after he had been detained

by ICE.

To support his equitable tolling argument, petitioner claimed that he suffered

a “violent attack” that resulted in bruises and a black eye, and “[h]is financial

situation prevented him from seeking care and obtaining an attorney to address the

situation.” Petitioner does not explain how this assault, which occurred two weeks

5 before the December 20, 2016 hearing, prevented him from filing a motion to

reopen for approximately eight months after the hearing. Similarly, petitioner’s

inability to pay his attorney would not have prevented him from filing a motion to

reopen pro se. See Rasberry v. Garcia, 448 F.3d 1150, 1154 (9th Cir. 2006) (“[A]

pro se petitioner’s lack of legal sophistication is not, by itself, an extraordinary

circumstance warranting equitable tolling.”). Given that petitioner has not offered

any authority to support equitable tolling on facts similar to his, remand is

unnecessary.

2. Petitioner argues the BIA erred in refusing to exercise its discretionary

authority to reopen his case sua sponte. Appellate courts generally “lack

jurisdiction to review the Board’s decision not to invoke its sua sponte authority to

reopen proceedings.” Go v. Holder, 744 F.3d 604, 609–10 (9th Cir. 2014). Courts

“may only exercise jurisdiction over BIA decisions denying sua sponte reopening

‘for the limited purpose of reviewing the reasoning behind the decisions for legal

or constitutional error.’” Cui v. Garland, 13 F.4th 991, 1001 (9th Cir. 2021)

(quoting Bonilla, 840 F.3d at 588).

Here, the sole legal error that petitioner identifies that might justify

jurisdiction is the alleged deficiency in the NTA that initiated his removal

proceedings. This argument is identical to that raised in petitioner’s second motion

to reopen. Because, as explained below, this argument lacks merit, petitioner has

6 not identified any legal or constitutional error in the BIA’s refusal to reopen the

matter sua sponte, and accordingly, we lack jurisdiction to review that decision.

We dismiss this portion of the petition.

3. Petitioner subsequently filed a second motion to reopen and terminate

proceedings based upon the Supreme Court’s decision in Pereira v. Sessions, 585

U.S. 198 (2018). Petitioner argued that the NTA that initiated his removal

proceedings was defective in that it lacked a time, date and location for the

hearing, and thus jurisdiction over the removal proceedings never vested with the

immigration court. Citing the BIA’s prior decision in Matter of Bermudez-Cota, 27

I&N Dec. 441 (BIA 2018), and this court’s decision in Karingithi v. Whitaker, 913

F.3d 1158 (9th Cir. 2019), the BIA held that the defective NTA did not deprive the

immigration court of jurisdiction and denied the motion. Petitioner argues the

BIA’s decision constituted an abuse of discretion.

Petitioner’s jurisdictional argument is squarely foreclosed by this Court’s en

banc decision in United States v. Bastide-Hernandez, 39 F.4th 1187 (9th Cir.

2022). That case held that “[n]othing in the INA, . . . conditions an immigration

court’s adjudicatory authority on compliance with rules governing notices to

appear, whether statutory or regulatory.” Id. at 1191–92 (internal quotation marks

and citations omitted). Rather, the requirements surrounding the contents of an

NTA are “claim-processing rule[s] not implicating the court’s adjudicatory

7 authority.” Id. at 1191. Accordingly, any deficiency in the NTA did not undermine

the jurisdiction of the immigration court over petitioner’s removal proceedings.

Petitioner was provided with the missing information concerning the date,

time, and location of his initial hearing just five days after he received the NTA

and well before the initial hearing date, which hearing petitioner in fact attended.

The subsequent provision of the missing information likely remedied any defect in

the NTA. See Aguilar Fermin v. Barr, 958 F.3d 887, 895 (9th Cir. 2020) (holding

that “the appropriate remedy” for an NTA that does not contain the required

address information is “providing the alien and the government with the complete

notice at a later time”); Karingithi, 913 F.3d at 1162 (holding that subsequent

notice containing date and time of removal proceeding cured lack of such

information in the NTA). Further, petitioner has not shown he suffered any

prejudice from the defect in his NTA. See Kohli v. Gonzales, 473 F.3d 1061, 1066

(9th Cir. 2007). Petitioner in fact attended the initial hearing and other hearings

before the IJ for approximately three years. Accordingly, petitioner cannot show

the BIA erred in denying his motion to reopen based on the purportedly defective

NTA.

PETITION IN CASE NO. 19–71514 DENIED. PETITION IN CASE

NO. 18–70550 DISMISSED IN PART AND DENIED IN PART.

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