Jorge Murga-Aquino v. Eric Holder, Jr. , 584 F. App'x 378 ( 2014 )

FILED
NOT FOR PUBLICATION JUL 30 2014
MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
JORGE FERNANDO MURGA-AQUINO, No. 13-70634
a.k.a. Anthonny Benjamin Sillis-Levy,
Agency No. A070-500-558
Petitioner,
v. MEMORANDUM*
ERIC H. HOLDER, Jr., Attorney General,
Respondent.
On Petition for Review of an Order of the
Board of Immigration Appeals
Submitted July 22, 2014**
Before: GOODWIN, CANBY, and CALLAHAN, Circuit Judges.
Jorge Fernando Murga-Aquino, a native and citizen of Guatemala, petitions
for review of an order of the Board of Immigration Appeals (“BIA”) denying his
motion to reopen deportation proceedings. Our jurisdiction is governed by
8 U.S.C. § 1252. We review for abuse of discretion the denial of a motion to
*
This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
**
The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
reopen, Avagyan v. Holder, 646 F.3d 672, 674 (9th Cir. 2011), and review de novo
questions of law, Simeonov v. Ashcroft, 371 F.3d 532, 535 (9th Cir. 2004). We
deny in part and dismiss in part the petition for review.
The BIA did not abuse its discretion by denying Murga-Aquino’s motion to
reopen as untimely and number barred. First, his motion, being his second motion
to reopen and having been filed approximately ten years after his deportation order
became administratively final, exceeded the time and numerical limitations on
motions to reopen. See 8 C.F.R. § 1003.2(c)(2). Second, Murga-Aquino did not
establish that his motion qualified for an exception to the filing limitations based
on changed country conditions, where his change in name and religious affiliation,
without any related change in country conditions, constitutes solely a change in
personal circumstances. See Chandra v. Holder, 751 F.3d 1034, 1037 (9th Cir.
2014) (observing that the exception for changed country conditions “prohibit[s] a
motion to reopen that relies solely on a change in personal circumstances”). Third,
Murga-Aquino did not establish that his motion qualified for equitable tolling of
the filing limitations based on ineffective assistance of counsel, where he failed to
demonstrate that he had exercised the necessary due diligence. See Avagyan,
646 F.3d at 679 (ascertaining due diligence based on “whether petitioner made
reasonable efforts to pursue relief”).
2 13-70634
Our case law forecloses Murga-Aquino’s contention that his motion to
reopen, to the extent that it seeks a hearing on his request for protection under the
Convention Against Torture (“CAT”), is exempt from the general filing
limitations. See Go v. Holder, 744 F.3d 604, 609 (9th Cir. 2014) (“[T]he
procedural requirements specified in 8 C.F.R. § 1003.2(c) apply to CAT claims.”).
The BIA applied the correct legal standard for changed country conditions to
Murga-Aquino’s motion to reopen. See Mendez-Castro v. Mukasey, 552 F.3d 975,
980 (9th Cir. 2009) (concluding that agency “applied the correct legal standard” in
a case where it “expressly cited and applied [relevant case law] in rendering its
decision, which is all our review requires”).
In light of this disposition, the BIA properly declined to reach the merits of
Murga-Aquino’s pretensions of eligibility for relief from deportation. See
Simeonov, 371 F.3d at 538 (“As a general rule . . . agencies are not required to
make findings on issues the decision of which is unnecessary to the results they
reach.”). We likewise need not reach Murga-Aquino’s nondispositive contentions
regarding ineffective assistance of counsel, eligibility for relief, and the validity of
the BIA’s precedential decisions. See Mendez-Alcaraz v. Gonzales, 464 F.3d 842,
844 (9th Cir. 2006) (declining to reach nondispositive challenges to a BIA order).
3 13-70634
We lack jurisdiction to consider Murga-Aquino’s challenges to his
underlying deportation proceedings because this petition for review is untimely as
to those proceedings. See Membreno v. Gonzales, 425 F.3d 1227, 1229 (9th Cir.
2005) (en banc).
We also lack jurisdiction to review the agency’s refusal to exercise its sua
sponte authority to reopen Murga-Aquino’s case. See Minasyan v. Mukasey,
553 F.3d 1224, 1229 (9th Cir. 2009).
PETITION FOR REVIEW DENIED in part; DISMISSED in part.
4 13-70634