Unreported / Non-Citable
Background
Violeta Yovana Montes Urroz, a native and citizen of Nicaragua, sought review in the Ninth Circuit while representing herself. She had applied for asylum, withholding of removal, and protection under the Convention Against Torture, and an immigration judge denied those applications. She then appealed to the Board of Immigration Appeals, but the Board did not reach the merits of the immigration judge's decision. Instead, it summarily dismissed the appeal.
The Board's dismissal rested on a procedural ground: the notice of appeal was untimely filed. The Ninth Circuit panel, consisting of Judges Silverman, Forrest, and Vandyke, decided the case on the submitted papers without oral argument, concluding it was suitable for decision under Federal Rule of Appellate Procedure 34(a)(2). The memorandum is marked not for publication. Montes Urroz also moved to stay her removal, and that motion was pending alongside the petition.
The memorandum does not describe the facts underlying her claims, the immigration judge's reasoning, or the specific dates of the filing deadline and the filing itself. The decision therefore says nothing about whether her claims for relief had merit.
The Court’s Holding
The court denied the petition for review. It stated that it had jurisdiction under 8 U.S.C. § 1252 and that it reviews the Board's summary dismissal of an appeal for abuse of discretion, citing Nolasco-Amaya v. Garland. Applying that standard, it concluded the Board did not abuse its discretion in summarily dismissing the appeal because the notice of appeal was untimely, citing 8 C.F.R. § 1003.1(d)(2)(i)(G).
Montes Urroz argued that equitable tolling of the filing deadline was warranted. The court declined to reach that contention because she did not sufficiently raise it before the Board. It cited the statutory requirement that administrative remedies be exhausted, 8 U.S.C. § 1252(d)(1). Relying on Suate-Orellana v. Garland, the panel noted that exhaustion is not jurisdictional but must be enforced when it is properly raised by a party. It also cited Magana-Magana v. Bondi, where a petitioner failed to put the Board on notice of an equitable tolling claim.
The court denied the motion to stay removal as moot. The disposition is a denial of the petition, not a remand: the Board's order stands. The court did not decide whether the asylum, withholding, or Convention Against Torture claims were meritorious, and it did not decide whether equitable tolling would have been available had it been presented to the Board.
Key Takeaways
- A Board decision to summarily dismiss an appeal as untimely is reviewed for abuse of discretion, and an untimely notice of appeal supports that dismissal under 8 C.F.R. § 1003.1(d)(2)(i)(G).
- Equitable tolling arguments must be presented to the Board itself; raising them for the first time in the court of appeals does not satisfy the exhaustion requirement of 8 U.S.C. § 1252(d)(1).
- Exhaustion is not jurisdictional in the Ninth Circuit, but the court will enforce it when the requirement is properly raised by a party.
- Denial of the petition ended the request for a stay of removal, which the court denied as moot.
- Because the panel resolved the case on procedural grounds, the memorandum offers no ruling on the merits of the underlying asylum, withholding of removal, or Convention Against Torture claims.
Why It Matters
This is an unpublished, non-precedential memorandum disposition, citable only as permitted by Ninth Circuit Rule 36-3. Its value lies in showing how the court applies existing authority rather than in making new law. It reinforces two points: a late notice of appeal can end a Board appeal without any look at the merits, and a petitioner who wants to argue equitable tolling must tell the Board so.
For self-represented noncitizens, the lesson is practical. The deadline for appealing to the Board, and any claim that it should be excused, must be addressed in the Board proceedings, because the court of appeals will not consider a tolling theory that was not sufficiently raised there. The memorandum does not discuss any other avenue for relief, such as a motion filed with the Board, so what options remain open to the petitioner are not addressed.