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,

(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.,

(2d

Cir. 2006). We review the agency’s denial of a motion to

reopen for abuse of discretion. Ali v. Gonzales,

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);

(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

(d); Mahmood v. Holder,

(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,

(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,

3 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.”

(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

(b)(3); see also INS

v. Abudu,

(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

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