Victor Lopez-Martinez v. Merrick Garland ( 2023 )

NOT FOR PUBLICATION FILED
UNITED STATES COURT OF APPEALS FEB 17 2023
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
VICTOR ALEXANDER LOPEZ- No. 20-71579
MARTINEZ,
Agency No. A205-319-067
Petitioner,
v. MEMORANDUM*
MERRICK B. GARLAND, Attorney
General,
Respondent.
On Petition for Review of an Order of the
Board of Immigration Appeals
Submitted February 15, 2023**
Pasadena, California
Before: WALLACE, HURWITZ, and BADE, Circuit Judges.
Victor Alexander Lopez-Martinez, a native and citizen of Honduras, seeks
review of a decision of the Board of Immigration Appeals (“BIA”) denying his third
motion to reopen as time- and number-barred. We have jurisdiction under 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).
§ 1252. Reviewing for abuse of discretion, we deny the petition. See Perez-
Camacho v. Garland, 54 F.4th 597, 603 (9th Cir. 2022).
The BIA ordered Lopez removed in 2014, holding that Lopez was ineligible
for cancellation of removal because of a disqualifying domestic violence conviction.
A noncitizen may file one motion to reopen removal proceedings within ninety days
of the date of entry of a final administrative order. 8 U.S.C. § 1229a(c)(7)(A), (C).
However, failure to comply with the time and number requirements can be excused
if a noncitizen could not previously obtain vital information bearing on the existence
of his claim despite due diligence or because of circumstances beyond his control.
See Perez-Camacho, 54 F.4th at 606. Lopez claims that his third motion to reopen,
filed in 2020, should be excused from the time and number limitations because he
recently discovered that he had pleaded guilty to a non-disqualifying simple battery
charge, not a domestic violence charge.
The BIA did not abuse its discretion in treating the third motion to reopen as
time- and number-barred.1 Lopez “presented neither argument nor evidence
explaining why” he was unable to timely obtain the information about his
conviction. Lara-Garcia v. Garland, 49 F.4th 1271, 1277 (9th Cir. 2022). The state-
court documents submitted in support of Lopez’s argument were filed in June 2012
and were publicly available. And, Lopez “alleged no facts . . . suggesting a diligent
1
Lopez does not seek review of the BIA’s decision not to reopen sua sponte.
2
pursuit of [his] rights in the intervening years . . . ; nor has [he] shown that some
extraordinary circumstance stood in [his] way and prevented timely filing.” Lona v.
Barr, 958 F.3d 1225, 1232 (9th Cir. 2020) (cleaned up) (in the analogous context of
a motion to reconsider). The BIA’s denial of equitable tolling was therefore not
“arbitrary, irrational, or contrary to law.” Id. (cleaned up). Because the BIA did not
abuse its discretion in declining equitable tolling, we need not consider the BIA’s
alternative denial of the motion on the merits.2
PETITION FOR REVIEW DENIED.
2
The motion for a stay of removal is denied. The temporary stay of removal is
terminated.
3