Filed: Aug. 13, 2019
Latest Update: Mar. 03, 2020
Summary: 18-1 Osio-Gatica v. Barr BIA Ruehle, IJ A205 021 921 UNITED STATES COURT OF APPEALS FOR THE SECOND CIRCUIT SUMMARY ORDER RULINGS BY SUMMARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT. CITATION TO A SUMMARY ORDER FILED ON OR AFTER JANUARY 1, 2007, IS PERMITTED AND IS GOVERNED BY FEDERAL RULE OF APPELLATE PROCEDURE 32.1 AND THIS COURT=S LOCAL RULE 32.1.1. WHEN CITING A SUMMARY ORDER IN A DOCUMENT FILED WITH THIS COURT, A PARTY MUST CITE EITHER THE FEDERAL APPENDIX OR AN ELECTRONIC DATABASE (WITH THE NO
Summary: 18-1 Osio-Gatica v. Barr BIA Ruehle, IJ A205 021 921 UNITED STATES COURT OF APPEALS FOR THE SECOND CIRCUIT SUMMARY ORDER RULINGS BY SUMMARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT. CITATION TO A SUMMARY ORDER FILED ON OR AFTER JANUARY 1, 2007, IS PERMITTED AND IS GOVERNED BY FEDERAL RULE OF APPELLATE PROCEDURE 32.1 AND THIS COURT=S LOCAL RULE 32.1.1. WHEN CITING A SUMMARY ORDER IN A DOCUMENT FILED WITH THIS COURT, A PARTY MUST CITE EITHER THE FEDERAL APPENDIX OR AN ELECTRONIC DATABASE (WITH THE NOT..
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18-1
Osio-Gatica v. Barr
BIA
Ruehle, IJ
A205 021 921
UNITED STATES COURT OF APPEALS
FOR THE SECOND CIRCUIT
SUMMARY ORDER
RULINGS BY SUMMARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT. CITATION TO A SUMMARY ORDER
FILED ON OR AFTER JANUARY 1, 2007, IS PERMITTED AND IS GOVERNED BY FEDERAL RULE OF
APPELLATE PROCEDURE 32.1 AND THIS COURT=S LOCAL RULE 32.1.1. WHEN CITING A SUMMARY ORDER
IN A DOCUMENT FILED WITH THIS COURT, A PARTY MUST CITE EITHER THE FEDERAL APPENDIX OR AN
ELECTRONIC DATABASE (WITH THE NOTATION “SUMMARY ORDER”). A PARTY CITING TO A SUMMARY
ORDER MUST SERVE A COPY OF IT ON ANY PARTY NOT REPRESENTED BY COUNSEL.
At a stated term of the United States Court of Appeals
for the Second Circuit, held at the Thurgood Marshall
United States Courthouse, 40 Foley Square, in the City of
New York, on the 13th day of August, two thousand nineteen.
PRESENT:
JON O. NEWMAN,
DENNIS JACOBS,
PETER W. HALL,
Circuit Judges.
_____________________________________
JUAN RAUL OSIO-GATICA,
Petitioner,
v. 18-1
NAC
WILLIAM P. BARR, UNITED STATES
ATTORNEY GENERAL,
Respondent.
_____________________________________
FOR PETITIONER: Stephen K. Tills, Orchard Park, NY.
FOR RESPONDENT: Joseph H. Hunt, Assistant Attorney
General; Justin R. Markel, Senior
Litigation Counsel; Brooke M.
Maurer, Trial Attorney, Office of
Immigration Litigation, United
States Department of Justice,
Washington, DC.
UPON DUE CONSIDERATION of this petition for review of a
Board of Immigration Appeals (“BIA”) decision, it is hereby
ORDERED, ADJUDGED, AND DECREED that the petition for review
is DENIED.
Petitioner Juan Raul Osio-Gatica, a native and citizen
of Mexico, seeks review of a December 7, 2017, decision of
the BIA affirming a July 14, 2017, decision of an Immigration
Judge (“IJ”) denying Osio-Gatica’s motion to reopen his
removal proceedings. In re Juan Raul Osio-Gatica, No. A205
021 921 (B.I.A. Dec. 7, 2017), aff’g No. A205 021 921 (Immig.
Ct. Buffalo Jul. 14, 2017). We assume the parties’
familiarity with the underlying facts and procedural history
in this case.
As an initial matter, Osio-Gatica’s argument that the
agency lacked jurisdiction over his removal proceedings
because his notice to appear did not include a hearing date
is foreclosed by Banegas Gomez v. Barr, 922 F.3d 101, 110-12
(2d Cir. 2019).
As to his motion to reopen, we have considered both the
IJ’s and the BIA’s decisions “for the sake of completeness.”
Wangchuck v. Dep’t of Homeland Sec., 448 F.3d 524, 528 (2d
Cir. 2006). We review the agency’s denial of a motion to
reopen for abuse of discretion. Ali v. Gonzales,
448 F.3d
2
515, 517 (2d Cir. 2006). The agency did not abuse its
discretion in denying the motion because it was untimely and
the basis for the motion—Osio-Gatica’s partner’s pregnancy—
could have been raised previously.
First, the agency properly denied Osio-Gatica’s motion
as untimely filed. A “motion to reopen shall be filed within
90 days of the date of entry of a final administrative order
of removal.” 8 U.S.C. § 1229a(c)(7)(C)(i); 8 C.F.R.
§ 1003.23(b)(1). The IJ granted Osio-Gatica voluntary
departure on February 22, 2017, with an alternate order of
removal should he fail to depart by June 22, 2017. When
Osio-Gatica did not depart on or before June 22, 2017, his
February 2017 voluntary departure order converted to a final
order of removal because he had waived appeal. See 8 C.F.R.
§ 1240.26(d); Mahmood v. Holder, 570 F.3d 466, 469 (2d Cir.
2009) (holding that the 90-day period for reopening runs from
the date of the voluntary departure order, not the date of
departure); see also Thapa v. Gonzales,
460 F.3d 323, 333 (2d
Cir. 2006) (concluding that orders of voluntary departure
that include alternate orders of removal are final orders for
purposes of judicial review). Osio-Gatica did not file a
motion to reopen until July 3, 2017, more than 90 days after
the February 2017 voluntary departure order. Accordingly,
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the motion was untimely. See 8 U.S.C. § 1229a(c)(7)(C)(i).
Further, the agency did not abuse its discretion in
determining that the evidence of Osio-Gatica’s partner’s
pregnancy was not new or previously unavailable. “A motion
to reopen will not be granted unless the . . . evidence sought
to be offered is material and was not available and could not
have been discovered or presented at the former hearing.”
8 C.F.R. § 1003.23(b)(3). The supporting documentation that
Osio-Gatica submitted reflected that his partner was about 3
months pregnant at the time of his final February 2017
hearing. Osio-Gatica does not explain why he did not raise
the pregnancy at his February hearing. The agency therefore
did not abuse its discretion in denying reopening because
Osio-Gatica did not present new or previously unavailable
evidence. See 8 C.F.R. § 1003.23(b)(3); see also INS
v. Abudu, 485 U.S. 94, 104 (1988) (requiring new and material
evidence for reopening).
For the foregoing reasons, the petition for review is
DENIED. As we have completed our review, any stay of removal
that the Court previously granted in this petition is VACATED,
and any pending motion for a stay of removal in this petition
is DISMISSED as moot. Any pending request for oral argument
in this petition is DENIED in accordance with Federal Rule of
4
Appellate Procedure 34(a)(2), and Second Circuit Local Rule
34.1(b).
FOR THE COURT:
Catherine O’Hagan Wolfe,
Clerk of Court
5
