Mohamed Abbas v. Merrick Garland

NOT FOR PUBLICATION FILED UNITED STATES COURT OF APPEALS JAN 23 2023 MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS FOR THE NINTH CIRCUIT MOHAMED KAMAL ELDIN ABBAS, No. 19-71664 Petitioner, Agency No. A096-684-420 v. MEMORANDUM* MERRICK B. GARLAND, Attorney General, Respondent. On Petition for Review of an Order of the Board of Immigration Appeals Argued and Submitted November 18, 2022 San Francisco, California Before: TASHIMA and PAEZ, Circuit Judges, and SESSIONS,** District Judge. * This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3. ** The Honorable William K. Sessions III, United States District Judge for the District of Vermont, sitting by designation. Mohamed Kamal Eldin Abbas (“Abbas”), a native and citizen of Egypt, petitions for review of a decision by the Board of Immigration Appeals (“BIA”) denying his motions to reconsider and to reopen removal proceedings. We review the denial of a motion to reopen and a motion to reconsider for abuse of discretion. See Cano-Merida v. INS, 311 F.3d 960, 964 (9th Cir. 2002). We review the agency’s factual findings for substantial evidence. See Hernandez-Ortiz v. Garland, 32 F.4th 794, 800 (9th Cir. 2022). We have jurisdiction under 8 U.S.C. § 1252. We grant the petition and remand for further proceedings consistent with this disposition. Abbas first argues that a defective Notice to Appear (“NTA”) deprived the immigration court of jurisdiction over his removal proceedings. Our recent decision in United States v. Bastide-Hernandez forecloses this argument, and we therefore reject it. 39 F.4th 1187, 1188, 1192–93 (9th Cir. 2022) (en banc) (holding that a defective NTA does not deprive the immigration court of subject matter jurisdiction). Abbas’s motion to reopen was untimely and number-barred, see 8 C.F.R. § 1003.2(c)(2), and his motion to reconsider was untimely, see 8 C.F.R. § 1003.2(b)(2). He has advanced two theories for overcoming these procedural bars. First, he seeks application of an exception to the bars based on changed country conditions relevant to his claims for asylum, withholding, and CAT relief, 2 see 8 C.F.R. § 1003.2(c)(3)(ii), and claims the BIA abused its discretion by failing to review his evidence. The BIA decision included only a cursory acknowledgement of the country conditions evidence rather than a substantive analysis. This error was harmless, however, because the record does not establish that there has been a material change in country conditions since Abbas’s initial proceedings. See Malty v. Ashcroft, 381 F.3d 942, 945 (9th Cir. 2004). Separately, Abbas argued in his motion to reopen that equitable tolling of the time and number bars was warranted due to a change in law that made him newly eligible to apply for cancellation of removal. The time and number bars applicable to motions to reopen and reconsider are subject to equitable tolling. Perez- Camacho v. Garland, 42 F.4th 1103, 1110 (9th Cir. 2022) (a noncitizen “can secure review of a motion to reopen that would otherwise be time-and number- barred if the deadline is subject to equitable tolling”). …

Original document
Source: All recent Immigration Decisions In All the U.S. Courts of Appeals