NOT FOR PUBLICATION FILED
UNITED STATES COURT OF APPEALS FEB 16 2022
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
JOSE ANTONIO ORTIZ NAREZ, Nos. 19-72039
20-71416
Petitioner,
Agency No. A013-623-921
v.
MERRICK B. GARLAND, Attorney MEMORANDUM*
General,
Respondent.
On Petition for Review of an Order of the
Board of Immigration Appeals
Argued and Submitted December 6, 2021
Pasadena, California
Before: M. SMITH, LEE, and FORREST, Circuit Judges.
Jose Ortiz Narez, a native and citizen of Mexico, seeks review of the Board
of Immigration Appeals’ (BIA) decision denying his appeal of the final order of
removal and his motion to reopen. We have jurisdiction under 8 U.S.C. § 1252 and
deny in part and dismiss in part.
1. The record establishes Ortiz’s conviction under California Penal Code
*
This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
(CPC) § 237d. The BIA held that the Immigration Judge (IJ) properly found that the
minute order, when read in conjunction with the statute, reflects that Ortiz was
convicted of violating CPC § 273d(a). We agree. The minute order shows that Ortiz
was convicted of violating CPC § 273d—not § 273(d). Moreover, subsection (a)
defines the offense conduct in § 273d, and the other subsections provide terms for
sentencing enhancement and probation. See CPC § 273d. Ortiz was therefore
convicted of the predicate offense supporting his conviction, and the IJ and the BIA
did not err in basing Ortiz’s removability on § 273d(a).
2. The BIA did not err in determining Ortiz’s predicate offense because it only
reviewed the record of conviction, i.e., the minute order and the statute. Olivas-
Motta v. Holder, 746 F.3d 907, 908 (9th Cir. 2013); Tokatly v. Ashcroft, 371 F.3d
613, 623–24 (9th Cir. 2004). Contrary to Ortiz’s assertion, the BIA did not go
“behind the record of conviction and erroneously cited the testimony of [Ortiz’s]
brother as supporting its finding that ‘child abuse’ was involved in Mr. Ortiz’s
conviction.” Rather, the BIA also reviewed the IJ’s factual findings, including its
finding that Ortiz was convicted under § 273d, for clear error. In doing so, the BIA
affirmed the IJ’s factual finding regarding Ortiz’s crime in one paragraph, and then,
in the next paragraph, noted that there “is no record evidence that [Ortiz] was
involved with or incurred any criminal violation relating to adoption of a child.” It
is in this second paragraph that the BIA referred to Ortiz’s brother’s testimony.
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Therefore, the BIA referred to Ortiz’s brother’s testimony to reject Ortiz’s argument
that the IJ’s factual finding was clearly erroneous—not to make an independent
factual finding regarding the crime of which he was convicted.
3. The agency did not violate Ortiz’s due process rights when denying Ortiz’s
cancellation of removal application. The BIA affirmed the IJ’s discretionary
decision to deny cancellation of removal “even excluding reliance on the two
documents that the respondent contends are inadmissible.”
We do not have jurisdiction to consider Ortiz’s remaining arguments. This
court lacks jurisdiction to review the BIA’s discretionary decision to view a crime
as a violent or dangerous one, Torres-Valdivias v. Lynch, 786 F.3d 1147, 1152–53
(9th Cir. 2015), or “review the merits of a discretionary decision to deny cancellation
of removal,” Vilchez v. Holder, 682 F.3d 1195, 1198 (9th Cir. 2012) (citations
omitted). Finally, we retain jurisdiction to ensure the BIA considered the relevant
evidence in making its decision; absent an indication otherwise, the court presumes
the agency considered all relevant evidence in the record. See Szonyi v. Barr, 942
F.3d 874, 897 (9th Cir. 2019). We thus do not permit Ortiz to “cloak[] an abuse of
discretion argument in constitutional [or legal] garb.” Mendez-Castro v. Mukasey,
552 F.3d 975, 978 (9th Cir. 2009) (quoting Torres-Aguilar v. INS, 246 F.3d 1267,
1271 (9th Cir. 2001)).
4. The immigration court had jurisdiction even though Ortiz’s initial Notice
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to Appear (NTA) did not specify the time and date of the hearing. “Jurisdiction vests,
and proceedings before an Immigration Judge commence, when a charging
document is filed with the Immigration Court.” 8 C.F.R. § 1003.14(a). “Importantly,
the regulation does not require that the time and date of proceedings appear in the
initial notice.” Karingithi v. Whitaker, 913 F.3d 1158, 1160 (9th Cir. 2019); see 8
C.F.R. § 1003.15(b). An NTA that does not include the address of the immigration
court, or date and time of hearing, does not deprive the immigration court of
jurisdiction. Aguilar Fermin v. Barr, 958 F.3d 887, 894–95 (9th Cir. 2020).
5. The BIA did not abuse its discretion in denying Ortiz’s motion to reopen as
untimely. A motion to reopen must be filed within 90 days of the final administrative
order of removal, Mata v. Lynch, 576 U.S. 143, 145 (2015) (citing 8 U.S.C.
§ 1229a(c)(7)(C)(i)), and Ortiz filed his motion to reopen more than four months
after the BIA’s final decision denying his cancellation of removal. The motion was
therefore untimely.
The BIA also did not abuse its discretion in deciding that equitable tolling was
not warranted. Equitable tolling is available “where, despite all due diligence, the
party requesting equitable tolling is unable to obtain vital information bearing on the
existence of the claim.” Mejia-Hernandez v. Holder, 633 F.3d 818, 824 (9th Cir.
2011) (quoting Abillo-De Leon v. Gonzales, 410 F.3d 1090, 1099–1100 (9th Cir.
2005)). Ortiz was represented by counsel throughout his removal proceedings and
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his current counsel had access to the transcript of the proceedings during the appeal
to the BIA, which shows that the plea form was not in the record. There is also
nothing to suggest that Ortiz was “unable to obtain vital information bearing on the
existence of the claim.” See Mejia-Hernandez, 633 F.3d at 824.
6. We lack jurisdiction to review the BIA’s decision not to invoke its sua
sponte authority to reopen Ortiz’s proceedings. See Bonilla v. Lynch, 840 F.3d 575,
586 (9th Cir. 2016). This court may, however, review BIA decisions denying sua
sponte “reopening for the limited purpose of reviewing the reasoning behind the
decisions for legal or constitutional error.” Menendez, 908 F.3d at 471. It was not
error for the BIA to rely on Matter of Beckford, 22 I. & N. Dec. 1216, 1218 (BIA
2000). Contrary to Ortiz’s contention, Matter of Beckford does not announce a
holding limited to its facts. See id. at 1218. The BIA therefore did not err.
PETITIONS FOR REVIEW ARE DENIED IN PART AND DISMISSED IN
PART.
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