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 2023-03

Rivera-Gonzalez v. Garland ( 2023 )


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  •                             NOT FOR PUBLICATION                          FILED
UNITED STATES COURT OF APPEALS                            MAR 8 2023
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
Sonia Rivera-Gonzalez,                              No. 21-80
Petitioner,                           Agency No.   A072-930-587
v.
MEMORANDUM*
Merrick B. Garland, U.S. Attorney
General,
Respondent.
On Petition for Review of an Order of the
Board of Immigration Appeals
Submitted March 6, 2023**
Pasadena, California
Before: CALLAHAN, FORREST, and H.A. THOMAS, Circuit Judges.
Petitioner Sonia Rivera-Gonzalez, a citizen of Mexico, seeks review of the
Board of Immigration Appeals’ (BIA) denial of her motion to reopen her removal
proceedings to seek withholding of removal and deferral of removal under the
Convention Against Torture. We have jurisdiction under
    8 U.S.C. § 1252
    (a), and
we deny in part and dismiss in part the petition.
*
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).
We review the BIA’s denial of a motion to reopen for abuse of discretion.
Tzompantzi-Salazar v. Garland,
    32 F.4th 696
    , 702 (9th Cir. 2022).
The BIA did not abuse its discretion in denying Rivera-Gonzalez’s motion
because she failed to demonstrate material changed country conditions based on
evidence that was unavailable at the time of her prior hearing in 2016. See 8
U.S.C. § 1229a(c)(7)(C)(ii);
    8 C.F.R. § 1003.2
    (c)(3)(ii). Much of the
documentary evidence that Rivera-Gonzalez submitted to show changed
conditions for LGBTQ persons in Mexico was available at the time of her prior
hearing. And the record does not establish that the BIA abused its discretion in
concluding that her remaining evidence demonstrates only “incremental” change,
not a “material” change. See Najmabadi v. Holder,
    597 F.3d 983
    , 990 (9th Cir.
2010).
Rivera-Gonzalez also challenges the BIA’s refusal to sua sponte grant
reopening. We lack jurisdiction to review the BIA’s discretionary judgment not
to sua sponte reopen removal proceedings where Rivera-Gonzalez has not raised
a colorable legal or constitutional challenge. See Menendez-Gonzalez v. Barr,
    929 F.3d 1113
    , 1116 (9th Cir. 2019); Mendez-Castro v. Mukasey,
    552 F.3d 975
    , 978
(9th Cir. 2009). Rivera-Gonzalez’s equitable tolling argument is a restatement of
her changed-conditions argument. And her due process argument—that the denial
of her motion violated her rights “to substantive and procedural due process by
depriving her review of her immigration case”—is “merely an abuse of discretion
claim re-packaged as a constitutional claim.” Negrete v. Holder,
    567 F.3d 419
    ,
2                                    21-80
422 (9th Cir. 2009). “A ‘petitioner may not create the jurisdiction that Congress
chose to remove simply by cloaking an abuse of discretion argument
in constitutional garb.’”
    Id.
     (quoting Torres-Aguilar v. INS,
    246 F.3d 1267
    , 1271
(9th Cir. 2001)).
PETITION DENIED IN PART; DISMISSED IN PART.1
1
We also deny as moot Rivera-Gonzalez’s motion for a stay of removal
pending appeal.
3                                    21-80