Roderick Go v. Eric Holder, Jr.
2014 U.S. App. LEXIS 4339
| 9th Cir. | 2014Background
- Go sought asylum, withholding of removal, and CAT relief; Board denied, and we denied Go’s petition in a prior published decision.
- Go later moved to reopen the CAT proceeding; the Board denied as untimely under 8 C.F.R. § 1003.2(c).
- Go argued § 1003.2(c) does not apply to CAT claims because the regulation does not reference CAT or deferral of removal.
- Board found the new evidence about the prosecutor and background country conditions immaterial to the CAT claim.
- We held that § 1003.2(c) applies to CAT claims, and reviewed Board’s denial for an abuse of discretion in considering materiality of new evidence.
- We denied the petition for review in part and dismissed in part; Go waived certain arguments and sua sponte review was deemed outside our jurisdiction.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether § 1003.2(c) applies to CAT motions to reopen | Go argues the regulation does not apply to CAT claims. | Board and Go rely on precedent holding § 1003.2(c) applies to CAT claims. | Yes; § 1003.2(c) applies to CAT claims. |
| Whether the Board abused its discretion in denying reopening as to materiality of new evidence | New evidence challenges Tajanlangit’s credibility and shows worsening conditions. | Evidence is immaterial and does not show changed circumstances. | No abuse of discretion; evidence immaterial. |
| Whether the Board should have granted reopening sua sponte | Go requests sua sponte reopening under § 1003.2(a). | We lack jurisdiction to review Board’s sua sponte denial. | Lack of jurisdiction to review sua sponte action. |
Key Cases Cited
- Chen v. Mukasey, 524 F.3d 1028 (9th Cir.2008) (CAT claims may be subject to time limits under § 1003.2(c))
- Foroglou v. Reno, 241 F.3d 111 (1st Cir.2001) (CAT relief not precluded by time limits; need not preempt CAT rights)
- Zheng v. Bureau of Citizenship & Immigration Servs., 472 Fed.Appx. 91 (2d Cir.2012) (CAT motions subject to time/numerical limits)
- Thomas v. Att’y Gen. of the U.S., 308 Fed.Appx. 587 (3d Cir.2009) (CAT claims governed by § 1003.2(c) requirements)
- Sunarto v. Mukasey, 306 Fed.Appx. 957 (6th Cir.2009) (CAT motion to reopen subject to § 1003.2(c))
- Ding v. U.S. Att’y Gen., 507 Fed.Appx. 845 (11th Cir.2013) (applies timeliness to CAT-related reopenings)
- Lezama-Garcia v. Holder, 666 F.3d 518 (9th Cir.2011) (one-member, non-precedential Board decisions and deference issue)
- Bassiri v. Xerox Corp., 463 F.3d 927 (9th Cir.2006) (agency interpretation of its own regulation entitled to Auer deference)
- Garcia-Quintero v. Gonzales, 455 F.3d 1006 (9th Cir.2006) (Chevron deference governs statutory interpretations, not agency regulation interpretations)
- Price v. Stevedoring Servs. of Am., Inc., 697 F.3d 820 (9th Cir.2012) (distinction between deference for regulations (Auer) vs statutes (Chevron))
- Public Lands for the People, Inc. v. U.S. Dept. of Agric., 697 F.3d 1192 (9th Cir.2012) (Auer deference to agency interpretations of its regulations)