Marvin Cisneros v. Merrick Garland ( 2023 )


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  •                               NOT FOR PUBLICATION                        FILED
    UNITED STATES COURT OF APPEALS                        FEB 22 2023
    MOLLY C. DWYER, CLERK
    U.S. COURT OF APPEALS
    FOR THE NINTH CIRCUIT
    MARVIN GEOVANNY CISNEROS,                       No.    20-72462
    Petitioner,                     Agency No. A094-304-017
    v.
    MEMORANDUM*
    MERRICK B. GARLAND, Attorney
    General,
    Respondent.
    On Petition for Review of an Order of the
    Board of Immigration Appeals
    Submitted February 14, 2023**
    Before:      FERNANDEZ, FRIEDLAND, and H.A. Thomas, Circuit Judges.
    Marvin Geovanny Cisneros, a native and citizen of El Salvador, petitions pro
    se for review of the Board of Immigration Appeals’ (“BIA”) order dismissing his
    appeal from an immigration judge’s (“IJ”) decision denying his motion to reopen
    removal proceedings. Our jurisdiction is governed by 
    8 U.S.C. § 1252
    . We 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).
    for abuse of discretion the agency’s denial of a motion to reopen, and we review de
    novo questions of law, including claims of due process violations due to ineffective
    assistance of counsel. Mohammed v. Gonzales, 
    400 F.3d 785
    , 791-92 (9th Cir.
    2005). We deny in part and dismiss in part the petition for review.
    The agency did not abuse its discretion in denying petitioner’s motion to
    reopen as untimely where it was filed 18 months after the final removal order, and
    petitioner has not established that any statutory or regulatory exception applies.
    See 8 U.S.C. § 1229a(c)(7)(C)(i) (motion to reopen must be filed within ninety
    days of the final removal order); 
    8 C.F.R. § 1003.2
    (c)(3) (listing exceptions).
    The agency did not abuse its discretion in declining to reopen based on
    ineffective assistance of counsel where Cisneros failed to show prejudice from the
    performance of former counsel. See Mohammed, 
    400 F.3d at 793-94
     (prejudice
    shown where counsel’s performance was so inadequate it may have affected the
    outcome).
    We lack jurisdiction to review the agency’s decision not to reopen removal
    proceedings sua sponte. See 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 do not consider Cisneros’ contentions regarding introduction of his
    2                                  20-72462
    mental health records, mistreatment in detention, and reconsideration of his
    applications for asylum, withholding of removal, and protection under the
    Convention Against Torture because the BIA did not decide the issue, see
    Santiago-Rodriguez v. Holder, 
    657 F.3d 820
    , 829 (9th Cir. 2011) (review limited
    to the grounds relied on by the BIA), and the BIA did not err in declining to
    consider the claims where raised for the first time on appeal, see Honcharov v.
    Barr, 
    924 F.3d 1293
    , 1297 (9th Cir. 2019).
    PETITION FOR REVIEW DENIED in part; DISMISSED in part.
    3                                  20-72462
    

Document Info

Docket Number: 20-72462

Filed Date: 2/22/2023

Precedential Status: Non-Precedential

Modified Date: 2/22/2023