Rutilo De Jesus-Arias v. Jefferson Sessions, III ( 2018 )

NOT FOR PUBLICATION FILED
UNITED STATES COURT OF APPEALS OCT 29 2018
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
RUTILO DE JESUS-ARIAS, AKA Rutilo No. 17-70148
De Jesus,
Agency No. A077-137-314
Petitioner,
v. MEMORANDUM*
JEFFERSON B. SESSIONS III, Attorney
General,
Respondent.
On Petition for Review of an Order of the
Board of Immigration Appeals
Submitted October 22, 2018**
Before: SILVERMAN, GRABER, and GOULD, Circuit Judges.
Rutilo De Jesus-Arias, a native and citizen of Mexico, petitions for review of
the Board of Immigration Appeals’ (“BIA”) order dismissing his appeal from an
immigration judge’s (“IJ”) order denying his motion to reopen removal
proceedings. Our jurisdiction is governed by 8 U.S.C. § 1252. We review for abuse
*
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).
of discretion the denial of a motion to reopen. Najmabadi v. Holder, 597 F.3d 983,
986 (9th Cir. 2010). We deny in part and dismiss in part the petition for review.
The agency did not err or abuse its discretion in denying De Jesus-Arias’
motion to reopen as untimely, where he filed the motion more than seventeen years
after his final administrative order of removal, he did not provide sufficient
evidence of deception, fraud, or error that would warrant equitable tolling of the
filing deadline, and he did not establish prima facie eligibility for asylum or related
relief to qualify for the regulatory exception to the filing deadline. See 8 C.F.R.
§ 1003.23(b)(1), (4)(i); Avagyan v. Holder, 646 F.3d 672, 679 (9th Cir. 2011)
(equitable tolling is available to a petitioner who is prevented from timely filing a
motion to reopen due to deception, fraud or error, as long as the petitioner
exercises due diligence in discovering such circumstances); Toufighi v. Mukasey,
538 F.3d 988, 996-97 (9th Cir. 2008) (evidence must demonstrate prima facie
eligibility for relief warranting reopening based on changed country conditions);
Bhasin v. Gonzales, 423 F.3d 977, 984 (9th Cir. 2005) (an applicant must generally
show an individualized, rather than a generalized, risk of persecution to establish
prima facie eligibility for asylum or withholding); Delgado-Ortiz v. Holder, 600
F.3d 1148, 1152 (9th Cir. 2010) (an applicant must establish it is more likely than
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not they would be tortured in the country of removal to establish prima facie
eligibility for protection under CAT).
The BIA corrected any error in the IJ’s CAT analysis. See Ghaly v. INS, 58
F.3d 1425, 1430 (9th Cir. 1995) (“Any error committed by the IJ will be rendered
harmless by the [BIA’s] application of the correct legal standard.”). De Jesus-
Arias’ contention that the BIA engaged in impermissible factfinding is not
supported by the record.
We lack jurisdiction to consider De Jesus-Arias’ unexhausted contention that
the IJ failed to address his request for sua sponte reopening. See Tijani v. Holder,
628 F.3d 1071, 1080 (9th Cir. 2010) (this court lacks jurisdiction to review
contentions not raised before the agency). Because he did not raise the issue in his
appeal brief, the BIA was not required to discuss it. See Zhang v. Ashcroft, 388
F.3d 713, 721 (9th Cir. 2004) (petitioner must sufficiently put the BIA on notice as
to specific issues so that the BIA has an opportunity to pass on those issues).
In light of our disposition, we do not reach De Jesus-Arias’ remaining
contentions regarding cancellation of removal. See Simeonov v. Ashcroft, 371 F.3d
532, 538 (9th Cir. 2004) (courts and agencies are not required to decide issues
unnecessary to the results they reach).
PETITION FOR REVIEW DENIED in part; DISMISSED in part.
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