Barriga v. Barr BIA Montante, IJ A076 563 917

19-2048
Barriga v. Barr
BIA
Montante, IJ
A076 563 917
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 1
for the Second Circuit, held at the Thurgood Marshall 2
United States Courthouse, 40 Foley Square, in the City of 3
New York, on the 11
th
day of March, two thousand twenty. 4
5
PRESENT: 6
DENNIS JACOBS, 7
JOSÉ A. CABRANES, 8
JOSEPH F. BIANCO, 9
Circuit Judges. 10
_____________________________________ 11
12
RICARDO BARRIGA, 13
Petitioner, 14
15
v. 19-2048 16
NAC 17
WILLIAM P. BARR, UNITED STATES 18
ATTORNEY GENERAL, 19
Respondent. 20
_____________________________________ 21
22
FOR PETITIONER: Pankaj Malik, Warshaw Burstein, 23
LLP, New York, NY. 24
25
FOR RESPONDENT: Joseph H. Hunt, Assistant Attorney 26
General; Mary Jane Candaux, 27
Assistant Director; Nicole J. 28
Thomas-Dorris, Trial Attorney, 29

2

Office of Immigration Litigation, 1
United States Department of 2
Justice, Washington, DC. 3
UPON DUE CONSIDERATION of this petition for review of a 4
Board of Immigration Appeals (“BIA”) decision, it is hereby 5
ORDERED, ADJUDGED, AND DECREED that the petition for review 6
is DISMISSED. 7
Petitioner Ricardo Barriga, a native and citizen of 8
Peru, seeks review of a June 28, 2019, decision of the BIA 9
summarily dismissing Barriga’s appeal of a January 2, 2019, 10
decision of an Immigration Judge (“IJ”) denying asylum, 11
withholding of removal, and relief under the Convention 12
Against Torture (“CAT”). In re Ricardo Barriga, No. A076 13
563 917 (B.I.A. June 28, 2019), aff’g No. A076 563 917 14
(Immig. Ct. Batavia Jan. 2, 2019). His appeal was 15
summarily dismissed because, after indicating in the notice 16
of appeal that he would file a brief, his lawyer missed an 17
already extended deadline, and later filed an untimely 18
brief without making the requisite motion to file out of 19
time. The dismissal was authorized by regulation.
1
We 20

1 The BIA may summarily dismiss any appeal in which “[t]he
party concerned indicates on Form EOIR-26 or Form EOIR-29
that he or she will file a brief or statement in support of
the appeal and, thereafter, does not file such brief or
statement, or reasonably explain his or her failure to do

3

assume the parties’ familiarity with the underlying facts 1
and procedural history. 2
Our jurisdiction is limited to constitutional claims 3
and questions of law because Barriga is removable by reason 4
of a controlled substance conviction. See 8 U.S.C. 5
§ 1252(a)(2)(C), (D). We review such claims de novo. 6
Pierre v. Holder, 588 F.3d 767, 772 (2d Cir. 2009). 7
This Court lacks jurisdiction because Barriga has 8
raised no constitutional issue or question of law. His 9
challenge to the BIA’s summary dismissal implicates the 10
BIA’s discretionary authority to refuse to accept untimely 11
briefs. See 8 C.F.R. § 1003.3(c)(1) (“In its discretion, 12
the Board may consider a brief that has been filed out of 13
time.”). Critically, Barriga makes no claim that the BIA 14
applied an incorrect legal standard, such as by 15
misunderstanding the scope of its authority to excuse a 16
late brief. 17
Barriga’s argument is that the BIA’s refusal to accept 18
his late brief “constitutes an abuse of discretion because 19
the denial is partially based on an error of fact,” namely, 20

so, within the time set for filing.” 8 C.F.R. §
1003.1(d)(2)(i)(E).

4

the BIA’s determination that his brief exceeded the 25-page 1
limit. (Pet’r Br. at 28.) But Barriga distorts the BIA’s 2
decision. His motion to file an untimely brief was denied 3
because the BIA had already granted his lawyer’s first 4
request for an extension, and because she filed the motion 5
to accept a late brief more than two weeks after the 6
extended deadline. The page limit was an ancillary point. 7
In any event, Barriga’s compliance with the page limit is a 8
point of fact, not a constitutional issue or legal 9
question. 10
Nor do Barriga’s underlying challenges to the IJ’s 11
removal decision implicate constitutional issues or 12
questions of law. Barriga complains that the IJ did not 13
allow his expert witness to testify by telephone, noting 14
that the expert would have provided key evidence for his 15
CAT claim: the “archaic and barbaric treatment of 16
individuals in Peru with serious mental disabilities.” 17
(Pet’r Br. at 30.) But he cannot claim that the IJ erred 18
as a matter of law in precluding telephonic testimony. 19
Likewise, Barriga’s criticism of the IJ’s adverse 20
credibility determination is purely factual: that the IJ 21
relied on “minor and basically immaterial” inconsistencies 22

5

in his testimony. (Pet’r Br. at 31.) 1
Likewise unavailing is Barriga’s argument that the IJ 2
erroneously concluded that his 2017 convictions for third-3
degree assault and felony DWI are “particularly serious 4
crime[s].” (Pet’r Br. at 30.) Barriga contends that the 5
IJ erred by “fail[ing] to apply a case-by-case analysis to 6
a crime that is not per se particularly serious.” (Pet’r 7
Br. at 30.) But he does not cite the record to 8
substantiate the contention, nor any legal authorities to 9
explain how it would be error if it were so. In any event, 10
the IJ did consider the particular circumstances of his 11
crimes: “I’m looking at the indictment, I’m looking at the 12
police report, and I’m going to look at the facts of the 13
case to determine whether . . . these were particularly 14
[serious] offenses.” (CAR at 206.) Accordingly, since 15
none of Barriga’s challenges implicate constitutional 16
issues or legal questions, we lack jurisdiction to 17
entertain his petition for review. 18

6

For the foregoing reasons, the petition for review is 1
DISMISSED. All pending motions and applications are DENIED 2
and stays VACATED. 3
4
FOR THE COURT: 5
Catherine O’Hagan Wolfe, 6
Clerk of Court 7
8