Ruiz-Sanchez v. Garland

NOT FOR PUBLICATION FILED UNITED STATES COURT OF APPEALS SEP 10 2024 MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS FOR THE NINTH CIRCUIT

URVANO RUIZ-SANCHEZ, No. 21-1328 Agency No. Petitioner, A093-492-459 v. MEMORANDUM* MERRICK B. GARLAND, Attorney General,

Respondent.

URVANO RUIZ-SANCHEZ, No. 22-1388 Agency No. Petitioner, A093-492-459 v.

MERRICK B. GARLAND, Attorney General,

Respondent.

On Petition for Review of an Order of the Board of Immigration Appeals

Submitted August 23, 2024**

* 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).

Portland, Oregon Before: WALLACH, CHRISTEN, and HURWITZ, Circuit Judges.***

Urvano Ruiz-Sanchez, a native and citizen of Mexico who has lived in the United States since 1980, petitions for review of two Board of Immigration Appeals (BIA) decisions. The first decision dismissed Ruiz-Sanchez’s appeal of an order from an Immigration Judge (IJ) denying his applications for withholding of removal and protection under the Convention Against Torture. The second BIA decision dismissed Ruiz-Sanchez’s motion to reconsider the finding of removability. We have jurisdiction under 8 U.S.C. § 1252(a). We review the agency’s legal conclusions de novo and factual findings for substantial evidence. See Ruiz-Colmenares v. Garland, 25 F.4th 742, 748 (9th Cir. 2022). As the parties are familiar with the facts, we do not recount them here. We grant the petition.

In 2018, Ruiz-Sanchez was convicted of possession of a controlled substance with intent to deliver, in violation of Idaho Code § 37-2732(a). The Department of Homeland Security (DHS) then initiated removal proceedings against Ruiz-Sanchez by sending him a Notice to Appear (NTA) that lacked date and time information. After an IJ found him removable, Ruiz-Sanchez argued for the first time on appeal to the BIA that the absence of the date and time for his

*** The Honorable Evan J. Wallach, United States Senior Circuit Judge for the Federal Circuit, sitting by designation.

2 22-1388 hearing on the initial NTA required termination of the proceedings. Ruiz-Sanchez argued termination was warranted both because the statutorily defective NTA deprived the immigration court of subject matter jurisdiction, and because it violated the claim-processing rule in 8 U.S.C. § 1229(a)(1).

The BIA correctly concluded that a statutorily deficient NTA does not deprive the immigration court of subject matter jurisdiction. United States v. Bastide-Hernandez, 39 F.4th 1187, 1190–94 (9th Cir. 2022) (en banc).1 But the BIA did not address Ruiz-Sanchez’s claim-processing argument. For that reason, we cannot address it in the first instance. See Budiono v. Lynch, 837 F.3d 1042, 1046 (9th Cir. 2016) (“Our review is limited to those grounds explicitly relied upon by the Board.”); Abebe v. Gonzales, 432 F.3d 1037, 1041 (9th Cir. 2005) (en banc).

We also “remand a case to an agency for decision of a matter that statutes place primarily in agency hands,” so that “[t]he agency can bring its expertise to bear upon the matter.” INS v. Orlando Ventura, 537 U.S. 12, 16–17 (2002); see also Kalilu v. Mukasey, 548 F.3d 1215, 1217 (9th Cir. 2008) (remanding to the

1 Although the en banc decision in Bastide-Hernandez issued after the BIA’s November 15, 2021 ruling, the BIA’s reasoning aligned with this holding, and it cited to consistent statements in United States v. Bastide-Hernandez, 986 F.3d 1245, 1248 (9th Cir. 2021) (vacated) and Aguilar Fermin v. Barr, 958 F.3d 887, 893–95 (9th Cir. 2020).

BIA to consider in the first instance the impact of subsequently issued BIA standards). In Matter of Fernandes, the BIA recognized that the time and place requirement in 8 U.S.C. § 1229(a)(1) is a mandatory claim-processing rule, which if raised in a timely objection, must be enforced. 28 I. & N. Dec. 605, 608 (BIA 2022). Recent Ninth Circuit and Supreme Court authority is consistent with Fernandes. See Campos-Chaves v. Garland, 144 S. Ct. 1637, 1649 (2024) (recognizing that initial NTAs lacking time and place information fail to satisfy 8 U.S.C. § 1229(a)(1)); id. at 1651 (describing the importance of this statutory requirement and the process to “raise issues regarding incomplete notice”); Bastide-Hernandez, 39 F.4th at 1193 n.9 (noting that “the supplement of a notice of hearing would not cure any NTA deficiencies under § 1229(a)”). We therefore grant the petition for review and remand for the BIA to consider in the first instance whether Ruiz-Sanchez’s objection to the NTA was timely, and if so, to address its merits in light of Fernandes, Bastide-Hernandez, and Campos-Chaves. See Suate-Orellana v. Garland, 101 F.4th 624, 632 (9th Cir. 2024).2

GRANTED.

Footnotes

[3] 22-1388 2 We deny Ruiz-Sanchez’s motion for judicial notice because it relates to the removability issue. Dkt. No. 36 in 21-1328; Dkt. No. 14 in 22-1388. Ruiz-Sanchez’s removability argument is foreclosed by Tellez-Ramirez v. Garland, 87 F.4th 424 (9th Cir. 2023), which affirmed removability for an aggravated felony based on a conviction for Idaho Code § 37-2732(a)(1)—the same offense at issue in this case.

[4] 22-1388