Garcia-Fermen v. Garland, No. 23-9540 (10th Cir. 2023)

Annotate this Case

Download PDF

Appellate Case: 23-9540 Document: 010110906627 Date Filed: 08/22/2023 UNITED STATES COURT OF APPEALS FOR THE TENTH CIRCUIT _________________________________ CARLOS GARCIA-FERMEN, Page: 1 FILED United States Court of Appeals Tenth Circuit August 22, 2023 Christopher M. Wolpert Clerk of Court Petitioner, v. No. 23-9540 (Petition for Review) MERRICK B. GARLAND, United States Attorney General, Respondent. _________________________________ ORDER AND JUDGMENT* _________________________________ Before MATHESON, BRISCOE, and EID, Circuit Judges. _________________________________ Carlos Garcia-Fermen, a native and citizen of El Salvador, entered the United States in 2016 with his wife and daughter. After the government sought their removal, he applied * After examining the briefs and appellate record, this panel has determined unanimously to honor the parties’ request for a decision on the briefs without oral argument. See Fed. R. App. P. 34(f); 10th Cir. R. 34.1(G). The case is therefore submitted without oral argument. This order and judgment is not binding precedent, except under the doctrines of law of the case, res judicata, and collateral estoppel. It may be cited, however, for its persuasive value consistent with Fed. R. App. P. 32.1 and 10th Cir. R. 32.1. Appellate Case: 23-9540 Document: 010110906627 Date Filed: 08/22/2023 Page: 2 for asylum, withholding of removal, and protection under the Convention Against Torture (“CAT”),1 leading to the following procedural chronology: April 18, 2019 - The immigration judge (“IJ”) denied the applications. AR 156-66. March 31, 2022 - The Board of Immigration Appeals (“BIA”) affirmed. AR 96-99. May 2, 2022 - Deadline for Mr. Garcia-Fermen to file a petition for review of the BIA’s March 31, 2022 order. 8 U.S.C. §§ 1252(a)(5); 1252(b)(1) (petition for review is due within 30 days of the final order of removal). He did not do so. June 21, 2022 - Mr. Garcia-Fermen moved to reopen proceedings based on new evidence. AR 13-93. November 17, 2022 - The BIA denied Mr. Garcia-Fermen’s motion to reopen. AR 2-4. December 13, 2022 - Mr. Garcia-Fermen filed the instant petition for review in the Ninth Circuit. April 24, 2023 - The Ninth Circuit transferred this matter to the Tenth Circuit. Mr. Garcia-Fermen timely petitioned for review of the BIA’s November 17, 2022 denial of his motion to reopen.2 But he did not timely petition for review of the BIA’s March 31, 2022 denial of his applications for asylum, withholding of removal, and CAT protection. We lack jurisdiction to address those matters. See Infanzon v. 1 Mr. Garcia-Fermen applied on behalf of himself and his wife and minor child. Our references to him in this opinion apply to the family. 2 Because Mr. Garcia-Fermen appears pro se, “we liberally construe his filings, but we will not act as his advocate.” James v. Wadas, 724 F.3d 1312, 1315 (10th Cir. 2013). 2 Appellate Case: 23-9540 Document: 010110906627 Date Filed: 08/22/2023 Page: 3 Ashcroft, 386 F.3d 1359, 1361 (10th Cir. 2004) (noting lack of jurisdiction when petitioner failed to timely petition from the BIA’s order). We have jurisdiction under 8 U.S.C. § 1252(a) to review the BIA’s denial of Mr. Garcia-Fermen’s motion to reopen as “a final, separately appealable order.” Id. at 1361. But Mr. Garcia-Fermen fails to address that issue in his brief, focusing instead on the merits of the underlying applications, and therefore has waived review of whether the BIA should have reopened the proceedings. See Platt v. Winnebago Indus., Inc., 960 F.3d 1264, 1271 (10th Cir. 2020) (failure to raise an issue in an opening brief waives that issue). Based on the foregoing, we dismiss in part and otherwise deny the petition. Entered for the Court, Scott M. Matheson, Jr. Circuit Judge 3

Some case metadata and case summaries were written with the help of AI, which can produce inaccuracies. You should read the full case before relying on it for legal research purposes.

This site is protected by reCAPTCHA and the Google Privacy Policy and Terms of Service apply.