Emilio Revolorio-Montenegro v. Merrick Garland

NOT FOR PUBLICATION FILED UNITED STATES COURT OF APPEALS NOV 7 2024 MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS FOR THE NINTH CIRCUIT EMILIO DE JESUS REVOLORIO- No. 16-73951 MONTENEGRO, 19-71785 Petitioner, Agency No. A095-743-798 v. MEMORANDUM* MERRICK B. GARLAND, Attorney General, Respondent. On Petition for Review of an Order of the Board of Immigration Appeals Submitted November 5, 2024** San Francisco, California Before: GOULD, SUNG, and DE ALBA, Circuit Judges. Emilio De Jesus Revolorio-Montenegro, a native and citizen of Guatemala, petitions for review of two Board of Immigration Appeals (“BIA”) orders denying his motions to reopen an in absentia removal order and removal proceedings. We * This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3. ** The panel unanimously concludes this case is suitable for decision without oral argument. See Fed. R. App. P. 34(a)(2). COA have jurisdiction under 8 U.S.C. § 1252. We review the BIA’s denial of a motion to reconsider or reopen for abuse of discretion. Tadevosyan v. Holder, 743 F.3d 1250, 1252 (9th Cir. 2014). Where the BIA affirmed the Immigration Judge’s decision and added its own reasoning, we review both decisions. Duran-Rodriguez v. Barr, 918 F.3d 1025, 1027–28 (9th Cir. 2019). We review the legal determinations de novo and the factual determinations for substantial evidence. Gutierrez-Alm v. Garland, 62 F.4th 1186, 1194 (9th Cir. 2023). We deny the petition for review. 1. With respect to the earlier-filed motion to reopen, Revolorio’s brief does not advance any legal arguments concerning the agency’s conclusions that he received notice of the hearing, that he did not show that the 180-day exceptional circumstances deadline should be equitably tolled, or that he failed to establish material changed circumstances to support an asylum application. We deem any argument with respect to these issues waived. Maharaj v. Gonzales, 450 F.3d 961, 967 (9th Cir. 2006) (arguments not raised in a petition are waived); see also Acosta-Huerta v. Estelle, 7 F.3d 139, 144 (9th Cir. 1992) (finding issues raised but not supported by argument in a pro se petitioner’s brief waived). Because these issues are dispositive, we deny the petition for review with respect to this motion. 2. With respect to the second motion, the BIA did not err in determining that the motion was not timely filed and that no exceptions to, or tolling of, the COA 2 filing deadline applied. Revolorio argues that Pereira v. Sessions, 585 U.S. 198 (2018), constitutes an intervening change of law that makes clear the Immigration Judge did not have jurisdiction to issue an order of removal and entitles him to equitable tolling. But the BIA correctly held that Pereira concerns the stop-time rule for cancellation of removal and does not address the immigration court’s jurisdiction. See Pereira, 585 U.S. at 208–09; Karingithi v. Whitaker, 913 F.3d 1158, 1159 (9th Cir. 2019) (“Pereira was not in any way concerned with the Immigration Court’s jurisdiction.”). Revolorio is not entitled to equitable tolling based on a change in the law because Pereira does not apply to his case. PETITION DENIED. COA 3