NOT FOR PUBLICATION FILED

UNITED STATES COURT OF APPEALS JUL 14 2022

MOLLY C. DWYER, CLERK

U.S. COURT OF APPEALS

FOR THE NINTH CIRCUIT

ENRIQUE ANTIMO JASSO, No. 20-71240

Petitioner, Agency No. A070 179 280

v.

MEMORANDUM*

MERRICK B. GARLAND, Attorney General,

Respondent.

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

Submitted July 6, 2022** Seattle, Washington

Before: HAWKINS and BUMATAY, Circuit Judges, and SEEBORG,*** District Judge.

Petitioner Enrique Antimo Jasso, a native and citizen of Mexico, petitions

for review of a denial of a motion to reopen administrative removal proceedings by

* 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 Richard Seeborg, Chief United States District Judge for the Northern District of California, sitting by designation. the Board of Immigration Appeals (“BIA”). We have jurisdiction under 8 U.S.C. §

1252. Petitioner seeks to challenge his 1994 in absentia removal order in a motion

to reopen. We review the BIA’s denial of a motion to reopen for abuse of

discretion, i.e., whether it was “arbitrary, irrational, or contrary to law.” Singh v.

INS, 295 F.3d 1037, 1039 (9th Cir. 2002) (internal quotation marks omitted);

Cano-Merida v. INS, 311 F.3d 960, 964 (9th Cir. 2002). “We review the [BIA’s]

legal conclusions de novo and its factual findings for substantial evidence[.]”

Bringas-Rodriguez v. Sessions, 850 F.3d 1051, 1059 (9th Cir. 2017) (en banc)

(citations omitted). We deny the petition for review in part and dismiss in part.

1. An in absentia deportation order can be revoked “upon a motion to reopen

filed within 180 days after the date of the [deportation order] if the alien

demonstrates that failure to appear was because of exceptional circumstances.” 8

U.S.C. § 1252b(c)(3)(A).1 Petitioner’s motion was clearly untimely, as it was filed

in 2019, roughly 25 years after his deportation order. Thus, to qualify for

reopening, Petitioner must show that there were exceptional circumstances and that

equitable tolling excuses his untimeliness. See Lopez v. INS, 184 F.3d 1097, 1100

(9th Cir. 1999).

1 Petitioner’s order to show cause was issued before the Illegal Immigration Reform and Immigrant Responsibility Act (“IIRIRA”) became effective. Therefore, pre-IIRIRA rules regarding motions to reopen apply here. Chete Juarez v. Ashcroft, 376 F.3d 944, 947 (9th Cir. 2004).

2 Petitioner argues that exceptional circumstances are present here because his

car was stolen in the days prior to his July 21, 1994, removal hearing, and his

notice to appear was in the car. Petitioner remembered the day the hearing was to

take place, but according to Petitioner, he misremembered the time of the hearing

and arrived three-and-a-half hours late. Even assuming Petitioner’s car was stolen,

the BIA did not abuse its discretion in determining he had not demonstrated

exceptional circumstances to excuse his untimely motion. The theft of the car is

only relevant here in that it caused Petitioner to lose the notice of appearance. Yet

losing the notice of appearance or misremembering the time of the hearing is not

an exceptional circumstance. See Valencia-Fragoso v. INS, 321 F.3d 1204, 1205–

06 (9th Cir. 2003). The term “exceptional circumstances” refers to “exceptional

circumstances (such as serious illness of the alien or death of an immediate relative

of the alien, but not including less compelling circumstances) beyond the control of

the alien.” 8 U.S.C. § 1252b(f)(2) (1994).2 Although the theft of Petitioner’s car

was beyond his control, no exceptional circumstances prevented him from

appearing, any more than if he had simply misplaced the notice himself. And as the

BIA found, Petitioner could have called the court to confirm the time of the

2 The current definition of “exceptional circumstances” is slightly different from the pre-IIRIRA definition, but the basic premise is the same: “we consider all exceptional—i.e., compelling—circumstances relevant to a petitioner’s motion to reopen.” Chete Juarez, 376 F.3d at 948.

3 hearing.

2. The BIA also did not abuse its discretion in finding that equitable tolling

does not apply because there was no “deception, fraud or error” committed by

Petitioner’s counsel. Iturribarria v. I.N.S., 321 F.3d 889, 897 (9th Cir. 2003). The

lawyer Petitioner contacted in 1994 told him there were “not many options” to

proceed, which the BIA reasonably characterized as not a statement of gross

malfeasance. The BIA also concluded that Petitioner did not act with due diligence

in waiting 25 years to reopen his case. This was not an abuse of discretion as he

has no explanation for not consulting another attorney, even after multiple

reinstatements of his deportation order, 3 especially given that his first attorney had

not indicated his case was totally hopeless. See Bonilla v. Lynch, 840 F.3d 575, 583

(9th Cir. 2016).

3. Petitioner next argues that he asked for sua sponte reopening and it is not

clear that either the IJ or the BIA considered this argument, violating his right to

have his arguments adjudicated. See Avagyan v. Holder, 646 F.3d 672, 678 (9th

Cir. 2011) (“The BIA abuses its discretion when it denies petitioner’s claim with

no indication that it considered all of the evidence and claims presented by the

3 The IJ mistakenly wrote that the deportation order was reinstated three times; in fact, it was only reinstated twice. Petitioner’s argument that this mistake was given improper weight is rejected: the IJ’s decision does not turn on the number of reinstatements, but the fact that the order was reinstated multiple times. The BIA appropriately found the error harmless.

4 petition.”). We have no jurisdiction to review this claim since he failed to raise it to

the BIA. See Sola v. Holder, 720 F.3d 1134, 1135 (9th Cir. 2013) (“A petitioner’s

failure to raise an issue before the BIA generally constitutes a failure to exhaust,

thus depriving this court of jurisdiction to consider the issue.”). For the same

reason, we lack jurisdiction to review Petitioner’s argument that the BIA engaged

in improper factfinding. See Brezilien v. Holder, 569 F.3d 403, 412 (9th Cir. 2009)

(discussing the requirement that a petitioner must exhaust an improper factfinding

claim before the BIA).4

PETITION FOR REVIEW DENIED IN PART AND DISMISSED IN

PART.

4 Because we find Petitioner is not entitled to relief, we need not reach the arguments about preclusion under 8 USC § 1231(a)(5), or waiver of that argument.

5