20-1501 Palacios-Jimenez v. Garland BIA A205 472 333

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 A SUMMARY ORDER MUST SERVE A COPY OF IT ON ANY PARTY NOT REPRESENTED BY COUNSEL.

1 At a stated term of the United States Court of Appeals 2 for the Second Circuit, held at the Thurgood Marshall 3 United States Courthouse, 40 Foley Square, in the City of 4 New York, on the 11th day of October, two thousand twenty- 5 two. 6 7 PRESENT: 8 JON O. NEWMAN, 9 JOSÉ A. CABRANES, 10 STEVEN J. MENASHI, 11 Circuit Judges. 12 _____________________________________ 13 14 PATRICIA YESENIA PALACIOS- 15 JIMENEZ, 16 Petitioner, 17 18 v. 20-1501 19 NAC 20 MERRICK B. GARLAND, UNITED 21 STATES ATTORNEY GENERAL, 22 Respondent. 23 _____________________________________ 24 25 FOR PETITIONER: Bruno Joseph Bembi, Hempstead, 26 NY. 27 28 FOR RESPONDENT: Brian Boynton, Acting Assistant 29 Attorney General; Cindy S. 30 Ferrier, Assistant Director; 1 Timothy G. Hayes, Senior 2 Litigation Counsel, Office of 3 Immigration Litigation, United 4 States Department of Justice, 5 Washington, DC. 6 7 UPON DUE CONSIDERATION of this petition for review of a

8 Board of Immigration Appeals (“BIA”) decision, it is hereby

9 ORDERED, ADJUDGED, AND DECREED that the petition for review

10 is DENIED.

11 Petitioner Patricia Yesenia Palacios-Jimenez, a citizen

12 of El Salvador, seeks review of an April 24, 2020, decision

13 of the BIA denying her motion to reopen. In re Patricia

14 Yesenia Palacios-Jimenez, No. A 205 472 333 (B.I.A. Apr. 24,

15 2020). We assume the parties’ familiarity with the underlying

16 facts and procedural history.

17 We review the BIA’s denial of a motion to reopen for

18 abuse of discretion. Ali v. Gonzales,

(2d

19 Cir. 2006). “An abuse of discretion may be found . . . where

20 the Board’s decision provides no rational explanation,

21 inexplicably departs from established policies, is devoid of

22 any reasoning, or contains only summary or conclusory

23 statements; that is to say, where the Board has acted in an

24 arbitrary or capricious manner.” Ke Zhen Zhao v. U.S. Dep’t 2 1 of Just.,

, 93 (2d Cir. 2001) (internal citations

2 omitted).

3 We deny the petition for review because the BIA did not

4 abuse its discretion when it denied Palacios-Jimenez’s motion

5 to reopen. Applicable BIA precedent holds that the BIA cannot

6 rule on a motion to reopen if it never adjudicated the merits

7 of the underlying appeal. See Matter of Lopez, 22 I. & N.

8 Dec. 16 (BIA 1998); Matter of Mladineo,

(BIA 1974). We have previously held that “the BIA did not

10 abuse its discretion in holding that it lacked jurisdiction

11 to rule on [a] motion [to reopen] as it had never made an

12 adjudication on the merits of [the alien’s first] appeal.”

13 Taneja v. BIA,

(2d Cir. 2005) (citing

14 Mladineo,

). There is no reason to reach

15 a different conclusion here. The BIA informed Palacios-

16 Jimenez when it dismissed her 2019 appeal as untimely that

17 “[i]f you wish to file a motion to reconsider challenging the

18 finding that the appeal was untimely, you must file your

19 motion with the Board” but “if you are challenging any other

20 finding or seek to reopen your case, you must file your motion

21 with the Immigration Court.” Cert. Admin. R. 64. The BIA did 3 1 not abuse its discretion in adhering to these guidelines.

2 Nor did the BIA abuse its discretion by failing directly

3 to address Palacios-Jimenez’s contention that a clerk at the

4 immigration court advised her to file the motion to reopen

5 with the BIA. Palacios-Jimenez argues that the BIA erred

6 because it “overlooked the cryptic explanation filed with the

7 motion that . . . the motion was presented to the immigration

8 court clerk on October 11, 2020, who refused to accept it,

9 and who gave instructions to file the motion with the BIA.”

10 Petitioner’s Br. 14. While the BIA has “an obligation to

11 consider the record as a whole,” Ke Zhen Zhao, 265 F.3d at

12 97, we “generally presume that the agency has taken into

13 account all of the evidence before it, unless the record

14 compellingly suggests otherwise,” Jin Yi Liao v. Holder, 558

, 156 n.3 (2d Cir. 2009) (internal quotation marks

16 and alteration omitted). An agency “is not required to

17 expressly parse or refute on the record each individual

18 argument or piece of evidence offered by the petitioner.”

19 In Ke Zhen Zhao, we concluded that the BIA “failed to address

20 all the factors relevant to petitioner’s claim” such that the

21 BIA failed “to explain [its] decision adequately.”

1 at 97 (emphasis added). Here, by contrast, Palacios-Jimenez’s

2 statement about the clerk’s instructions do not affect the

3 ground on which the BIA decided her appeal. The alleged

4 instructions from the clerk do not call into question the

5 BIA’s conclusion that Palacios-Jimenez’s initial appeal was

6 untimely or the BIA’s longstanding precedent that it lacks

7 jurisdiction over a motion to reopen a case that it never

8 addressed on the merits.

9 For the foregoing reasons, the petition for review is

10 DENIED. All pending motions and applications are DENIED and

11 stays VACATED.

12

13 JON O. NEWMAN, Circuit Judge, concurring:

14 In this case, the BIA told the petitioner that, if she

15 was seeking “any other relief,” which includes the motion to

16 reopen she has tried to file, she should file her motion with

17 the Immigration Court. The petitioner followed that advice.

18 However, personnel of the Immigration Court refused to file

19 her motion and, instead, incorrectly told her to file her

20 motion with the BIA.

21 As a matter of common decency, the BIA should correct 5 1 the agency’s mistake and direct the Immigration Court to

2 accept for filing a motion to reopen, if promptly filed. Cf.

3

(“[A]ny . . . court of appellate

4 jurisdiction . . . may . . . order . . . such further

5 proceedings . . . as may be just under the circumstances.”).

6

7 FOR THE COURT: 8 Catherine O’Hagan Wolfe, 9 Clerk of Court

6