Valenzuela Rivera v. Garland
21-1091
9th Cir.Mar 30, 2023Background
- Sixto Valenzuela Rivera, a Mexican national, petitioned for review of the BIA’s summary dismissal of his appeal from an immigration judge’s decision and the BIA’s denial of his motion to remand.
- Valenzuela’s Notice of Appeal (prepared with counsel) purported to appeal but the BIA found it failed to meaningfully specify the issues and legal grounds challenged.
- Valenzuela checked a box on the Notice indicating he would file a separate written brief or statement but never filed one and did not reasonably explain the omission.
- His motion to remand relied on excerpts from a book published after the removal hearing, alleging additional evidence of danger to deportees in Mexico.
- The BIA concluded the book’s factual material was not shown to have been unavailable at the hearing and that Valenzuela did not meet the heavy burden of showing the new evidence would likely change the outcome; the BIA also rejected a fee-related motion to terminate, an argument Valenzuela failed to exhaust.
- The Ninth Circuit reviewed for abuse of discretion, denied the petition in part, dismissed it in part, and left the stay of removal in place until mandate.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether the BIA properly summarily dismissed the appeal for lack of specificity in the Notice of Appeal | Valenzuela argued the Notice (prepared with counsel) was sufficient to apprise the BIA of his grounds | BIA argued the Notice failed the strict specificity requirement and gave no meaningful guidance | BIA did not abuse discretion; summary dismissal was proper under 8 C.F.R. §1003.1(d)(2)(i)(A) and Nolasco‑Amaya |
| Whether summary dismissal was proper for failure to file a separate brief after checking the box to do so | Valenzuela offered a motion to remand as explanation for why no brief was filed | BIA argued he failed to reasonably explain the omission required by rule | BIA did not abuse discretion; failure to file and lack of reasonable explanation justified dismissal under 8 C.F.R. §1003.1(d)(2)(i)(E) |
| Whether the BIA erred in denying the motion to remand based on post‑hearing book excerpts | Valenzuela argued the book contained material evidence of danger to deportees that warranted remand | BIA argued Valenzuela failed to show the factual evidence in the book was unavailable at the hearing and failed the heavy burden to show likely change in result | BIA did not abuse discretion; evidence not shown to be unavailable and Valenzuela failed to show it would likely change outcome (motion to remand treated like motion to reopen) |
| Whether Valenzuela exhausted his challenge to the BIA’s dismissal of his motion to terminate for lack of filing fee | Valenzuela argued the BIA improperly rejected termination for lack of jurisdiction due to fee issue | BIA asserted exhaustion requirements were not met | Court held Valenzuela failed to exhaust this argument; portion of petition dismissed |
Key Cases Cited
- Nolasco‑Amaya v. Garland, 14 F.4th 1007 (9th Cir. 2021) (articulating BIA’s strict specificity requirement for notices of appeal)
- Taggar v. Holder, 736 F.3d 886 (9th Cir. 2013) (standard of review: abuse of discretion for BIA summary dismissals)
- Angov v. Lynch, 788 F.3d 893 (9th Cir. 2015) (treating a motion to remand as having the same requirements as a motion to reopen)
- Shin v. Mukasey, 547 F.3d 1019 (9th Cir. 2008) (applicant bears heavy burden to show new evidence would likely change result)
- Dawson v. Garland, 998 F.3d 876 (9th Cir. 2021) (exhaustion requirement for certain BIA challenges)