Margarita Chavez-Gonzalez v. Merrick Garland ( 2021 )

NOT FOR PUBLICATION FILED
UNITED STATES COURT OF APPEALS SEP 17 2021
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
MARGARITA CHAVEZ-GONZALEZ, No. 20-73603
Petitioner, Agency No. A074-433-142
v.
MEMORANDUM*
MERRICK B. GARLAND, Attorney
General,
Respondent.
On Petition for Review of an Order of the
Board of Immigration Appeals
Submitted September 14, 2021**
Before: PAEZ, NGUYEN, and OWENS, Circuit Judges.
Margarita Chavez-Gonzalez, a native and citizen of Mexico, petitions for
review of the Board of Immigration Appeals’ (“BIA”) order denying her motion to
reconsider. Our jurisdiction is governed by 8 U.S.C. § 1252. We review for abuse
of discretion the denial of a motion to reconsider. Mohammed v. Gonzales, 400
*
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).
F.3d 785, 791 (9th Cir. 2005). We deny in part and dismiss in part the petition for
review.
The BIA did not abuse its discretion in denying Chavez-Gonzalez’s motion
to reconsider as untimely where it was filed more than 30 days after the order of
removal became final, see 8 U.S.C. § 1229a(c)(6)(B) (motion to reconsider must
be filed within 30 days of final order of removal), and Chavez-Gonzalez did not
present sufficient evidence for equitable tolling of the filing deadline, see Mejia-
Hernandez v. Holder, 633 F.3d 818, 824 (9th Cir. 2011) (“Equitable tolling is
applied in situations where, despite all due diligence, the party requesting equitable
tolling is unable to obtain vital information bearing on the existence of the claim.”
(citation and internal quotation marks omitted)).
We lack jurisdiction to review the BIA’s determination not to reopen
proceedings sua sponte. See Mejia-Hernandez, 633 F.3d at 823-24; cf. Bonilla v.
Lynch, 840 F.3d 575, 588 (9th Cir. 2016) (“[T]his court has jurisdiction to review
Board decisions denying sua sponte reopening for the limited purpose of reviewing
the reasoning behind the decisions for legal or constitutional error.”).
We also lack jurisdiction to review Chavez-Gonzalez’s contentions
concerning due process, ineffective assistance of counsel, and changed country
conditions because the contentions relate to the BIA’s denial of her second motion
to reopen, and she failed to timely file a petition for review of that decision. See
2 20-73603
8 U.S.C. § 1252(b)(1) (providing that petition for review must be filed no later than
30 days after the final order of removal); see also Singh v. INS, 315 F.3d 1186,
1188 (9th Cir. 2003) (30-day deadline is “mandatory and jurisdictional”).
Chavez-Gonzalez’s motion to supplement the record is denied. See 8 U.S.C.
§ 1252(b)(4)(A) (judicial review is limited to the administrative record on which
the order of removal is based); see also Dent v. Holder, 627 F.3d 365, 371 (9th Cir.
2010) (stating standard for review of out-of-record evidence).
The temporary stay of removal remains in place until issuance of the
mandate. The motion for a stay of removal is otherwise denied.
PETITION FOR REVIEW DENIED in part; DISMISSED in part.
3 20-73603