Enrique Briseno Garcia v. WILLIAM P. BARR, Attorney General

NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
ENRIQUE BRISENO GARCIA,
Petitioner,
v.
WILLIAM P. BARR, Attorney General,
Respondent.
Nos. 14-73286
15-71690
16-70985
Agency No. A077-420-700
MEMORANDUM*
On Petition for Review of an Order of the Immigration Judge and
Orders of the Board of Immigration Appeals
Submitted February 19, 2019**
Before: FERNANDEZ, SILVERMAN, and WATFORD, Circuit Judges.
In these consolidated petitions, Enrique Briseno Garcia, a native and citizen
of Mexico, petitions for review of an immigration judge’s (“IJ”) determination that
he did not have a reasonable fear of persecution or torture in Mexico (petition No.
14-73286) and the Board of Immigration Appeals’ (“BIA”) denial of his motions
to reopen proceedings (petition Nos. 15-71690, 16-70985). Our jurisdiction is
* 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).
FILED
FEB 21 2019
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS

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governed by 8 U.S.C. § 1252. In petition Nos. 14-73286 and 15-71690, we
dismiss. In petition No. 16-70985, we grant and remand.
As to petition No. 14-73286, we lack jurisdiction to review the IJ’s
reasonable fear determination because Briseno Garcia failed to timely file his
petition for review as to that decision. See 8 U.S.C. § 1252(b)(1) (providing that
petition for review must be filed within 30 days of final order of removal); see also
Singh v. INS, 315 F.3d 1186, 1188 (9th Cir. 2003) (30-day deadline is “mandatory
and jurisdictional”); cf. Ayala v. Sessions, 855 F.3d 1012, 1019-20 (9th Cir. 2017)
(holding that BIA’s dismissal was operative agency decision, and petition for
review was timely, because petitioner was misled regarding right of administrative
appeal); Martinez v. Sessions, 873 F.3d 655, 660 (9th Cir. 2017) (applying Ayala).
We therefore dismiss the petition for review in No. 14-73286.
As to petition No. 16-70985, the agency denied Briseno-Garcia’s motion to
reopen for lack of jurisdiction to reopen proceedings. When the BIA and IJ issued
their decisions, they did not have the benefit of this court’s decision in Bartolome
v. Sessions, 904 F.3d 803, 815 (9th Cir. 2018) (holding that 8 C.F.R.
§ 1003.23(b)(1) provides an IJ with sua sponte authority to reopen “any case in
which he or she has made a decision”). Thus, we grant the petition in No. 16-
70985, and remand to the agency for further proceedings consistent with this
disposition. See INS v. Ventura, 537 U.S. 12, 16-18 (2002) (per curiam). In light

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of our disposition, we dismiss No. 15-71690 as moot.
Each party shall bear its own costs in these petitions for review.
No. 14-73286: PETITION FOR REVIEW DISMISSED.
No. 15-71690: PETITION FOR REVIEW DISMISSED.
No. 16-70985: PETITION FOR REVIEW GRANTED; REMANDED.

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