Hernan Lopez-Cabrera v. Jefferson Sessions ( 2017 )

NOT FOR PUBLICATION FILED
UNITED STATES COURT OF APPEALS OCT 2 2017
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
HERNAN LOPEZ-CABRERA, No. 16-70035
Petitioner, Agency No. A089-853-856
v.
MEMORANDUM*
JEFFERSON B. SESSIONS III, Attorney
General,
Respondent.
On Petition for Review of an Order of the
Board of Immigration Appeals
Submitted September 26, 2017**
Before: SILVERMAN, TALLMAN, and N.R. SMITH, Circuit Judges.
Hernan Lopez-Cabrera, a native and citizen of El Salvador, petitions for
review of the Board of Immigration Appeals’ (“BIA”) order denying his motion to
reopen. We have jurisdiction under 8 U.S.C. § 1252. We review de novo
constitutional claims, and review for abuse of discretion the BIA’s denial of a
*
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).
motion to reopen. Mohammed v. Gonzales, 400 F.3d 785, 791-92 (9th Cir. 2005).
We deny the petition for review.
The BIA did not abuse its discretion in denying the motion as untimely
where the motion was filed over two years after the order of removal became final
and Lopez-Cabrera has not established that his motion falls within any exception to
filing deadline. See 8 C.F.R. § 1003.2(c)(3)(i)-(iv).
Contrary to Lopez-Cabrera’s contention, the BIA did not mischaracterize the
motion to reopen or fail to properly address his contentions. Accordingly the BIA
did not violate due process in denying the motion. See Lata v. INS, 204 F.3d 1241,
1246 (9th Cir. 2000) (to prevail on a due process challenge, an alien must
demonstrate error and substantial prejudice).
PETITION FOR REVIEW DENIED.
2 16-70035