Osfredi Ordonez Velasquez v. Jefferson Sessions , 713 F. App'x 604 ( 2018 )

NOT FOR PUBLICATION FILED
UNITED STATES COURT OF APPEALS FEB 22 2018
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
OSFREDI VIDAL ORDONEZ No. 16-71213
VELASQUEZ,
Agency No. A070-637-085
Petitioner,
v. MEMORANDUM*
JEFFERSON B. SESSIONS III, Attorney
General,
Respondent.
On Petition for Review of an Order of the
Board of Immigration Appeals
Submitted February 13, 2018**
Before: LEAVY, FERNANDEZ, and MURGUIA, Circuit Judges.
Osfredi Vidal Ordonez Velasquez, a native and citizen of Guatemala,
petitions pro se for review of the Board of Immigration Appeals’ (“BIA”) order
denying his second motion to reopen. Our jurisdiction is governed by 8 U.S.C.
*
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).
§ 1252. We review for abuse of discretion the denial of a motion to reopen.
Avagyan v. Holder, 646 F.3d 672, 674 (9th Cir. 2011). We deny in part and dismiss
in part the petition for review.
The BIA did not abuse its discretion in denying Ordonez Velasquez’s second
motion to reopen as untimely and number-barred where he filed it over 12 years
after his order of removal became final, see 8 U.S.C. § 1229a(c)(7)(A), (C)(1); 8
C.F.R. § 1003.2(c)(2), and he has not established that any statutory or regulatory
exception applies. See 8 U.S.C. § 1229a(c)(7)(C), 8 C.F.R. § 1003.2(c)(2)-(3).
Ordonez Velasquez cites no authority to support his contention that his
removal from the United States would violate the constitutional rights of his
children. See De Mercado v. Mukasey, 566 F.3d 810, 816 n. 5 (9th Cir. 2009)
(denial of an application for cancellation of removal does not implicate
constitutional rights concerning family unity or child rearing).
The record does not support Ordonez Velasquez’s contention that the BIA
failed to state its reasoning or show proper consideration for his contentions. See
Najmabadi v. Holder, 597 F.3d 983, 990-91 (9th Cir. 2010).
To the extent Ordonez Velasquez challenges the BIA’s 2003 order summarily
dismissing his appeal from an immigration judge’s denial of asylum and related relief,
we lack jurisdiction to consider those contentions because this petition is not timely as
to that order. See 8 U.S.C. § 1252(b)(1) (“The petition for review must be filed not
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later than 30 days after the date of the final order of removal.”). Therefore, we do not
reach Ordonez Velasquez’s contentions regarding eligibility for cancellation of
removal or suspension of deportation. See Simeonov v. Ashcroft, 371 F.3d 532, 538
(9th Cir. 2004).
To the extent Ordonez Velasquez contends that he may have been the victim
of ineffective assistance of counsel, we lack jurisdiction to consider this
unexhausted contention. See Barron v. Ashcroft, 358 F.3d 674, 678 (9th Cir. 2004).
To the extent Ordonez Velasquez contends that the BIA should have
exercised its sua sponte authority to reopen his case, we lack jurisdiction to
consider this contention absent a claim of legal or constitutional error. See Bonilla
v. Lynch, 840 F.3d 575, 588 (9th Cir. 2016).
We also lack jurisdiction to consider Ordonez Velasquez’s request for
prosecutorial discretion. See Vilchiz-Soto v. Holder, 688 F.3d 642, 644 (9th Cir.
2012) (order).
We do not consider the extra-record documentation submitted with Ordonez
Velasquez’s opening brief. See 8 U.S.C. § 1252(b)(4)(A) (judicial review is limited to
the administrative record); Dent v. Holder, 627 F.3d 365, 371 (9th Cir. 2010) (stating
standard of review for out-of-record evidence).
PETITION FOR REVIEW DENIED in part, DISMISSED in part.
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