Maria Moreno De Rios v. Loretta E. Lynch , 674 F. App'x 768 ( 2017 )


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  •                                                                             FILED
    NOT FOR PUBLICATION                              JAN 24 2017
    MOLLY C. DWYER, CLERK
    UNITED STATES COURT OF APPEALS                        U.S. COURT OF APPEALS
    FOR THE NINTH CIRCUIT
    MARIA HORTENCIA MORENO DE                        No.   14-73692
    RIOS,
    Agency No. A075-501-332
    Petitioner,
    v.                                              MEMORANDUM*
    LORETTA E. LYNCH, Attorney General,
    Respondent.
    On Petition for Review of an Order of the
    Board of Immigration Appeals
    Submitted January 18, 2017**
    Before:      TROTT, TASHIMA, and CALLAHAN, Circuit Judges.
    Maria Hortencia Moreno De Rios, a native and citizen of Mexico, petitions
    for review of the Board of Immigration Appeals’ (“BIA”) order denying her
    motion to reopen removal proceedings. Our jurisdiction is governed by 8 U.S.C.
    § 1252. We review for abuse of discretion the denial of a motion to reopen. Lin v.
    *
    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).
    Holder, 
    588 F.3d 981
    , 984 (9th Cir. 2009). We deny in part and dismiss in part the
    petition for review.
    The BIA did not abuse its discretion in denying Moreno De Rios’s motion to
    reopen as untimely, where the motion was filed twelve years after her final order of
    removal, see 8 C.F.R. § 1003.2(c)(2), and she did not demonstrate the due
    diligence necessary to warrant equitable tolling of the filing deadline, see Avagyan
    v. Holder, 
    646 F.3d 672
    , 679 (9th Cir. 2011) (equitable tolling is available to an
    alien who is prevented from filing a motion to reopen due to deception, fraud, or
    error, as long as the alien exercises due diligence in discovering such
    circumstances). Moreno De Rios also failed to present sufficient evidence of
    materially changed country conditions in Mexico to qualify for the regulatory
    exception to the filing deadline. See 8 C.F.R. § 1003.2(c)(3)(ii); 
    Lin, 588 F.3d at 989
    (BIA’s determination that petitioner did not establish materially changed
    country conditions was not “arbitrary, irrational, or contrary to law”).
    We reject Moreno De Rios’s contentions that the BIA failed to consider
    evidence and arguments presented in her motion, or insufficiently explained its
    decision. See Najmabadi v. Holder, 
    597 F.3d 983
    , 990 (9th Cir. 2010) (the agency
    must “merely . . . announce its decision in terms sufficient to enable a reviewing
    2                                    14-73692
    court to perceive that it has heard and thought and not merely reacted” (citation and
    quotation marks omitted)).
    We lack jurisdiction to consider Moreno De Rios’s unexhausted due process
    contention regarding the withdrawal of her asylum application. See Barron v.
    Ashcroft, 
    358 F.3d 674
    , 677-78 (9th Cir. 2004) (explaining that due process claims,
    procedural in nature, must be exhausted).
    To the extent Moreno De Rios alleges the immigration judge violated her
    due process rights during her 1999 proceedings, this petition is not timely as to that
    order. See 8 U.S.C. § 1252(b)(1).
    To the extent Moreno De Rios seeks prosecutorial discretion, we lack
    jurisdiction to consider such a request. See Vilchiz-Soto v. Holder, 
    688 F.3d 642
    ,
    644 (9th Cir. 2012) (order).
    In light of our disposition, we do not reach Moreno De Rios’s remaining
    contentions.
    PETITION FOR REVIEW DENIED in part, DISMISSED in part.
    3                                  14-73692
    

Document Info

Docket Number: 14-73692

Citation Numbers: 674 F. App'x 768

Judges: Trott, Tashima, Callahan

Filed Date: 1/24/2017

Precedential Status: Non-Precedential

Modified Date: 11/6/2024