Pablo Tobias v. Loretta E. Lynch , 637 F. App'x 450 ( 2016 )

FILED
NOT FOR PUBLICATION MAR 01 2016
MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
PABLO MORALES TOBIAS, No. 14-70090
Petitioner, Agency No. A074-431-630
v.
MEMORANDUM*
LORETTA E. LYNCH, Attorney General,
Respondent.
On Petition for Review of an Order of the
Board of Immigration Appeals
Submitted February 24, 2016**
Before: LEAVY, FERNANDEZ, and RAWLINSON, Circuit Judges.
Pablo Morales Tobias, a native and citizen of Mexico, petitions for review of
the Board of Immigration Appeals’ order dismissing his appeal from an
immigration judge’s (“IJ”) denial of his motion to reconsider and reopen his
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 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).
for abuse of discretion the denial of a motion to reconsider or reopen, and review
de novo constitutional claims. 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 the motion to reconsider,
where Tobias failed to establish any error of fact or law. See 8 C.F.R.
§ 1003.23(b)(2) (“A motion to reconsider shall state the reasons for the motion by
specifying the errors of fact or law in the [IJ’s] prior decision”). His contention
that the IJ violated his due process rights by pretermitting the hearing lacks merit,
where Tobias failed to file the motion to suppress and any applications for relief by
the deadline and also failed to respond to the government’s motion to pretermit the
hearing. See Taggar v. Holder, 736 F.3d 886, 890 (9th Cir. 2013) (“If an
application or document is not filed within the time set by the [IJ], the opportunity
to file that application or document shall be deemed waived.” (quoting 8 C.F.R.
§ 1003.31(c))); Lata v. INS, 204 F.3d 1241, 1246 (9th Cir. 2000) (requiring error
and prejudice to prevail on a due process challenge to proceedings).
The agency did not abuse its discretion in denying Tobias’s motion to
reopen to apply for asylum and related relief, where Tobias has not submitted an
application or any supporting documentation and therefore has failed to
demonstrate prima facie eligibility for relief. See Shin v. Mukasey, 547 F.3d 1019,
2 14-70090
1025 (9th Cir. 2008) (a motion to reopen must “be supported by affidavits or other
evidentiary materials demonstrating prima facie eligibility for the relief sought”
(citing 8 C.F.R. § 1003.2(c)(1)). The agency also did not abuse its discretion in
denying Tobias’s motion to reopen where he failed to show the new evidence
submitted, namely his motion to suppress with supporting declaration, could not
have been filed by the deadline. See 8 C.F.R. § 1003.2(c)(1); Bhasin v. Gonzales,
423 F.3d 977, 984 (9th Cir.2005) (evidence must not have been available to be
presented at the hearing before the IJ). Accordingly, Tobias’s related due process
claim fails. See Lata, 204 F.3d at 1246.
Tobias does not challenge the agency’s dispositive determination that Tobias
has not shown that his failure to timely file his applications or motion to suppress
was caused by ineffective assistance, and that he failed to comply with the
threshold requirements set forth in Matter of Lozada, 19 I. & N. Dec. 637 (BIA
1988). See Tijani v. Holder, 628 F.3d 1071, 1080 (9th Cir. 2010).
We lack jurisdiction to consider Tobias’s unexhausted contention that the IJ
failed to comply with his duty to ask Tobias if he was afraid to return to Mexico.
See Bazuaye v. INS, 79 F.3d 118, 120 (9th Cir. 1996) (declining to reach issue
raised for the first time in the reply brief).
PETITION FOR REVIEW DENIED in part; DISMISSED in part.
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