Jose Rosas Arenas v. Merrick Garland ( 2023 )

NOT FOR PUBLICATION FILED
UNITED STATES COURT OF APPEALS FEB 24 2023
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
JOSE ANTONIO ROSAS ARENAS; No. 18-71670
TERESA BRAVO DE ROSAS,
Agency Nos. A095-448-677
Petitioners, A095-448-678
v.
MEMORANDUM*
MERRICK B. GARLAND, Attorney
General,
Respondent.
On Petition for Review of an Order of the
Board of Immigration Appeals
Submitted February 21, 2023**
Before: OWENS, LEE, and BUMATAY, Circuit Judges.
Petitioners Jose Antonio Rosas Arenas and Teresa Bravo De Rosas, natives
and citizens of Mexico, seek review of the Board of Immigration Appeals’ (“BIA”)
denial of their motion for reopening and reconsideration. We have jurisdiction under
*
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).
8 U.S.C § 1252. Reviewing for abuse of discretion, Singh v. I.N.S., 213 F.3d 1050,
1052 (9th Cir. 2000), we deny the petition.
1. The BIA did not abuse its discretion by ruling that Petitioners failed to
allege changed country conditions sufficient to warrant reopening. To prevail on a
motion to reopen based on changed country conditions, a petitioner must “(1)
produce evidence that conditions have changed in the country of removal; (2)
demonstrate that the evidence is material; (3) show that the evidence was not
available and would not have been discovered or presented at the previous hearings;
and (4) demonstrate that the new evidence, when considered together with the
evidence presented at the original hearing, would establish prima facie eligibility for
the relief sought.” Agonafer v. Sessions, 859 F.3d 1198, 1204 (9th Cir. 2017)
(simplified). As the BIA noted, Petitioners offered only vague, unsworn statements
in their motion regarding crime in Mexico. They do not allege that conditions have
worsened since their initial proceeding, and thus cannot qualify for reopening based
on changed country conditions.
2. We lack jurisdiction to review the BIA’s decision not to reopen
proceedings sua sponte because of exceptional circumstances. Petitioners’ main
contentions in their motion for reopening and their opening brief on appeal relate to
the hardships their children will face if they are removed to Mexico. The BIA found
that the hardships alleged were insufficient to justify sua sponte reopening. This
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discretionary decision not to reopen is not reviewable on appeal. See Greenwood v.
Garland, 36 F.4th 1232, 1237 (9th Cir. 2022) (“[T]his court lacks jurisdiction to
review discretionary decisions by the BIA not to reopen a case sua sponte.”).
3. Petitioners’ constitutional argument is meritless. On appeal, Petitioners
argue that the BIA’s denial of their motion for reopening violates the Equal
Protection Clause, U.S. CONST. amend. XIV, because Congress has provided for
more lenient standards for cancellation of removal for Nicaraguan aliens under the
Nicaraguan Adjustment and Central American Relief Act (“NACARA”). We have
repeatedly rejected equal protection challenges to NACARA, upholding Congress’s
decision to “afford more favorable treatment to certain aliens” fleeing from
particularly oppressive regimes under rational basis review. Jimenez-Angeles v.
Ashcroft, 291 F.3d 594, 603 (9th Cir. 2002).
DENIED.
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