Guerra-Leyva v. Garland
| Docket Number | 18-70504 |
| Decision Date | 15 June 2022 |
| Parties | JORGE GUERRA-LEYVA, AKA Jorge C. Guerra, Petitioner, v. MERRICK B. GARLAND, Attorney General, Respondent. |
| Court | U.S. Court of Appeals — Ninth Circuit |
NOT FOR PUBLICATION
Submitted June 13, 2022 [**] San Francisco, California
On Petition for Review of an Order of the Board of Immigration Appeals, Agency No. A074-059-323
Before: S.R. THOMAS and GOULD, Circuit Judges, and WU [***] District Judge.
Jorge Guerra-Leyva, a native of Cuba, petitions for review of the Board of Immigration Appeals' ("BIA") dismissal of his appeal from the denial of his motion to reopen his removal proceedings. We review the agency's denial of a motion to reopen for abuse of discretion. Agonafer v Sessions, 859 F.3d 1198, 1203 (9th Cir. 2017). We have jurisdiction under 8 U.S.C. § 1252. We dismiss in part and deny in part the petition for review.
Guerra-Leyva's motion to reopen was untimely. Motions to reopen must be filed within ninety days of a final removal order. 8 C.F.R. § 1003.2(c)(2); see id. § 1003.2(c)(3)(ii) (providing that motions to reopen based on changed country conditions may be filed at any time). Guerra-Leyva's motion was filed about eighteen years after he was ordered removed. The BIA properly concluded that his untimeliness should not be excused.
The BIA acted within its discretion in determining that Guerra-Leyva failed to show changed country conditions material to his claims for relief. Guerra-Leyva produced no evidence suggesting that the conditions relevant to his claims of future persecution and torture were different from those that existed at the time of his 1999 removal hearing. His own affidavit, submitted with his motion, describes the present conditions in Cuba as a continuation of past conditions, noting that the government "continues to be a strong dictatorship" (emphasis added). Further, the shifts in diplomatic relations that Guerra-Leyva claims will make it more likely that he will be removed to Cuba are not material to his claims for relief. The fact of removal is assumed when evaluating a petitioner's case for asylum and related relief. Thus, the actual probability of removal has no bearing on the strength of a claim. See, e.g., Al-Harbi v. INS, 242 F.3d 882, 890 (9th Cir. 2001) ().
The BIA also acted within its discretion in declining to equitably toll the deadline for Guerra-Leyva's motion to reopen. Guerra-Leyva's primary argument for equitable tolling is that at the time of his deportation hearing in 1999, he was eligible for adjustment of status under the Cuban Adjustment Act ("CAA"), but was never informed of this possibility and was instead told that he could remain in the United States indefinitely if he did not contest his removal proceedings.[1] This argument fails because the BIA correctly concluded that Guerra-Leyva was not, in fact, eligible for adjustment under the CAA at the time of his hearing.
Under the CAA, Cuban refugees may apply for adjustment of status on an expedited timeline, but they must nevertheless be admissible under federal immigration law. See Cuban Adjustment Act, Pub. L. No. 89-732, 80 Stat. 1161 (). Guerra-Leyva argues he was admissible, as his controlled substances conviction under Nev. Rev. Stat. § 453.338 could not disqualify him pursuant to 8 U.S.C. § 1182(a)(2)(A)(i)(II)-even under the modified-categorical approach-because the judgment of conviction was ambiguous as to the substance he was convicted of possessing.
Guerra-Leyva's argument is foreclosed by the Supreme Court's recent decision in Pereida v. Wilkinson, 141 S.Ct. 754 (2021), and our subsequent decision in Marinelarena v. Garland, 6 F.4th 975 (9th Cir. 2021). In Pereida, the Court held that an applicant convicted under a divisible state statute that includes some disqualifying offenses retains the burden of showing that his conviction was not disqualifying. See 141 S.Ct. at 763 & n.4. Applying that holding, we held that, when faced with such a situation, a petitioner cannot succeed by pointing to the ambiguity of the record; since the petitioner retains the burden, "ambiguity is insufficient." Marinelarena, 6 F.4th at 978. Accordingly, because Guerra-Leyva was convicted under a statute divisible by substance, he cannot prevail by claiming that the record of his conviction was ambiguous as to the type of substance he actually possessed.
We lack jurisdiction over Guerra-Leyva's claim that the agency erred in denying his request for sua...
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