Juan Zaragoza v. Jefferson Sessions
677 F. App'x 413
| 9th Cir. | 2017Background
- Juan Pablo Zaragoza, a Mexican national, petitioned for review after the BIA dismissed his appeal from an IJ’s denial of a motion to reopen an in-absentia removal order.
- The agency had mailed a notice of hearing by regular mail to Zaragoza’s last known address; Zaragoza claimed he did not receive it and moved to reopen for lack of notice.
- Zaragoza also argued reopening was warranted due to exceptional circumstances and equitable tolling, and asserted denial of due process for lack of a transcript and other procedural errors; he raised claims of ineffective assistance of prior counsel.
- The motion to reopen was filed more than nine years after the removal order.
- The Ninth Circuit reviewed the BIA’s denial for abuse of discretion and reviewed constitutional claims de novo, then denied in part and dismissed in part Zaragoza’s petition.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether lack of mailed notice violated due process | Zaragoza: did not receive hearing notice; therefore in-absentia order invalid | Agency: mailed notice to last known address; presumption of proper delivery applies | Court: No abuse of discretion or due process violation; presumption of delivery not overcome |
| Whether exceptional circumstances/equitable tolling justify reopening after >9 years | Zaragoza: exceptional circumstances and diligence justify tolling the deadline | Agency: motion untimely under 8 C.F.R. §1003.23(b)(4)(ii) and no due diligence shown | Court: Denial not an abuse; Zaragoza failed to show due diligence for equitable tolling |
| Whether denial of transcript violated due process | Zaragoza: lack of transcript deprived him of meaningful review | Agency: record did not show prejudice; audio alternatives suffice | Court: No due process violation because Zaragoza failed to show prejudice |
| Whether other procedural claims and counsel-related claims were considered | Zaragoza: BIA speculated, misstated record, failed to apply law, and counsel’s actions justify relief | Agency: BIA adequately explained decision; some claims unexhausted | Court: Record doesn’t support allegations about BIA reasoning; claims about counsel’s Notice of Appearance unexhausted and court lacked jurisdiction; ineffective-assistance claims not reached due to disposition |
Key Cases Cited
- Mohammed v. Gonzales, 400 F.3d 785 (9th Cir. 2005) (standard of review: abuse of discretion for motions to reopen; de novo for constitutional claims)
- Salta v. INS, 314 F.3d 1076 (9th Cir. 2002) (evidence required to overcome presumption of proper delivery)
- Popa v. Holder, 571 F.3d 890 (9th Cir. 2009) (due process satisfied if service is reasonably calculated to give notice)
- Avagyan v. Holder, 646 F.3d 672 (9th Cir. 2011) (requirements for due diligence and equitable tolling)
- Lata v. INS, 204 F.3d 1241 (9th Cir. 2000) (prejudice requirement for procedural-due-process-based reopening)
- Singh v. Holder, 638 F.3d 1196 (9th Cir. 2011) (audio recordings may substitute for transcripts for appeal)
- Najmabadi v. Holder, 597 F.3d 983 (9th Cir. 2010) (BIA’s need to explain decision and avoid improper factfinding)
- Tijani v. Holder, 628 F.3d 1071 (9th Cir. 2010) (exhaustion requirement bars review of unexhausted claims)