Mynor Melgar-Lopez v. Merrick Garland ( 2022 )

NOT FOR PUBLICATION FILED
UNITED STATES COURT OF APPEALS JUN 10 2022
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
MYNOR ROLANDO MELGAR-LOPEZ, No. 20-70971
Petitioner, Agency No. A070-928-455
v.
MEMORANDUM*
MERRICK B. GARLAND, Attorney
General,
Respondent.
On Petition for Review of an Order of the
Board of Immigration Appeals
Submitted June 2, 2022**
Before: SILVERMAN, KOH, and SANCHEZ, Circuit Judges.
Mynor Rolando Melgar-Lopez, a native and citizen of Guatemala, petitions
for review of the Board of Immigration Appeals’ (“BIA”) order denying his
motion to reopen removal proceedings.1 Our jurisdiction is governed by 8 U.S.C.
*
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).
1
Melgar-Lopez does not challenge the BIA’s denial of his motion for termination.
§ 1252. We review for abuse of discretion the denial of a motion to reopen. Cano-
Merida v. INS, 311 F.3d 960, 964 (9th Cir. 2002). We deny in part and dismiss in
part the petition for review.
The BIA did not abuse its discretion in denying as untimely Melgar-Lopez’s
motion to reopen because he filed the motion more than eight years after his final
order of removal. See 8 C.F.R. § 1003.2(c)(2) (requiring motions to reopen to
comply with the general 90-day filing deadline). Melgar-Lopez neither alleged nor
demonstrated that any statutory or regulatory exception to the filing deadline
applies. 8 U.S.C. § 1229a(c)(7)(C); 8 C.F.R. § 1003.2(c)(3); Najmabadi v. Holder,
597 F.3d 983, 986 (9th Cir. 2010) (describing the circumstances under which the
90-day filing deadline does not apply). Melgar-Lopez also failed to establish
grounds for equitable tolling of the filing deadline. Avagyan v. Holder, 646 F.3d
672, 679 (9th Cir. 2011) (explaining that equitable tolling is available to an
applicant who is prevented from timely filing a motion to reopen due to deception,
fraud, or error).
We lack jurisdiction to review the BIA’s denial of sua sponte reopening for
Melgar-Lopez to seek adjustment of status because he did not show a legal or
constitutional error that would invoke our jurisdiction. See Bonilla v. Lynch, 840
F.3d 575, 588 (9th Cir. 2016) (“[T]his court has jurisdiction to review [BIA]
2 20-70971
decisions denying sua sponte reopening for the limited purpose of reviewing the
reasoning behind the decisions for legal or constitutional error.”).
We reject Melgar-Lopez’s contentions that the BIA failed to consider the
evidence presented in his motion to reopen, or otherwise failed to properly analyze
his claims.
The temporary stay of removal remains in place until issuance of the
mandate.
PETITION FOR REVIEW DENIED in part; DISMISSED in part.
3 20-70971