Yumin Xuan v. Merrick Garland ( 2022 )

NOT FOR PUBLICATION FILED
UNITED STATES COURT OF APPEALS FEB 24 2022
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
YUMIN XUAN, No. 19-71731
Petitioner, Agency No. A096-494-474
v.
MEMORANDUM*
MERRICK B. GARLAND, Attorney
General,
Respondent.
On Petition for Review of an Order of the
Board of Immigration Appeals
Submitted February 15, 2022**
Before: FERNANDEZ, TASHIMA, and FRIEDLAND, Circuit Judges.
Yumin Xuan, a native and citizen of China, petitions for review of the Board
of Immigration Appeals (“BIA”) order denying her motion to reopen removal
proceedings to apply for adjustment of status. Our jurisdiction is governed by
8 U.S.C. § 1252. We dismiss the petition for review.
*
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).
We lack jurisdiction to review the BIA’s determination not to reopen
removal proceedings where Xuan does not raise a colorable legal or constitutional
error underlying the BIA’s decision that would invoke our jurisdiction. See Lona
v. Barr, 958 F.3d 1225, 1227 (9th Cir. 2020) (the court retains jurisdiction to
review BIA decisions denying sua sponte reopening for the limited purpose of
reviewing the reasoning behind the decision for legal or constitutional error). We
lack jurisdiction to consider Xuan’s contentions as to equitable estoppel that she
raises for the first time in her opening brief because she did not raise them to the
BIA. See Barron v. Ashcroft, 358 F.3d 674, 677-78 (9th Cir. 2004) (court lacks
jurisdiction to review claims not presented to the agency). To the extent Xuan now
contends her motion to reopen qualifies for an exception to the statutory
requirement of timely filing, we lack jurisdiction to consider this unexhausted
issue. See id.The temporary stay of removal remains in place until issuance of the
mandate.
PETITION FOR REVIEW DISMISSED.
2 19-71731