Rene Juarez Guzman 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NOT FOR PUBLICATION FILED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
RENE JUAREZ GUZMAN, No. 19-73016
Petitioner, Agency No. A097-359-530
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.
Rene Juarez Guzman, a native and citizen of Mexico, petitions for review of
the Board of Immigration Appeals’ (“BIA”) order denying his motion to reopen
removal proceedings. Our jurisdiction is governed by 8 U.S.C. § 1252. We review
for abuse of discretion the denial of a motion to reopen. Mohammed v. Gonzales,
*
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).
400 F.3d 785, 791 (9th Cir. 2005). We review de novo claims of due process
violations in immigration proceedings. Simeonov v. Ashcroft, 371 F.3d 532, 535
(9th Cir. 2004). We deny in part and dismiss in part the petition for review.
The BIA did not abuse its discretion in denying as untimely Juarez
Guzman’s motion to reopen proceedings as to cancellation of removal where it was
filed more than four years after the order of removal became final and he did not
establish a statutory or regulatory exception to the time limitation. See 8 U.S.C.
§ 1229a(c)(7)(C)(i)-(ii) (an exception to the ninety-day filing deadline for motions
to reopen may be established for certain asylum and withholding of removal
claims); 8 C.F.R. § 1003.2(c)(2)-(3) (ninety-day filing deadline for motions to
reopen does not apply in certain specified proceedings).
The BIA also did not abuse its discretion in denying as untimely Juarez
Guzman’s motion to reopen to apply for asylum and related relief where he did not
demonstrate a material change in country conditions. See 8 U.S.C. §
1229a(c)(7)(C)(i)-(ii); 8 C.F.R. § 1003.2(c)(2)-(3); Najmabadi v. Holder, 597 F.3d
983, 990-91 (9th Cir. 2010) (BIA did not abuse its discretion in denying motion to
reopen where petitioner failed to submit material evidence of qualitatively different
country conditions).
In light of this disposition, we need not reach Juarez Guzman’s contentions
as to whether he demonstrated a change in personal circumstances sufficient to
2 19-73016
establish an exception to the filing deadline for a motion to reopen, or as to his
continuous physical presence in the United States.
We lack jurisdiction to review the BIA’s decision not to reopen removal
proceedings sua sponte where Juarez Guzman does not raise a colorable legal or
constitutional error to invoke our jurisdiction. See Bonilla v. Lynch, 840 F.3d 575,
588 (9th Cir. 2016) (the court can review BIA decisions denying sua sponte
reopening only for the limited purpose of reviewing the reasoning behind the
decision for legal or constitutional error).
Juarez Guzman’s claim that the BIA violated his right to due process by
failing to consider all relevant evidence fails. See Lata v. INS, 204 F.3d 1241,
1246 (9th Cir. 2000) (error is required to prevail on a due process claim). The
temporary stay of removal remains in place until issuance of the mandate.
PETITION FOR REVIEW DENIED in part; DISMISSED in part.
3 19-73016