Moises Fortin Miralda v. Loretta E. Lynch ( 2016 )

NOT FOR PUBLICATION FILED
UNITED STATES COURT OF APPEALS AUG 3 2016
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
MOISES FORTIN MIRALDA, No. 14-73115
Petitioner, Agency No. A072-543-229
v.
MEMORANDUM*
LORETTA E. LYNCH, Attorney General,
Respondent.
On Petition for Review of an Order of the
Board of Immigration Appeals
Submitted July 26, 2016**
Before: SCHROEDER, CANBY, and CALLAHAN, Circuit Judges.
Moises Fortin Miralda, a native and citizen of Honduras, petitions for review
of the Board of Immigration Appeals’ (“BIA”) order denying his 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 and review de novo
*
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).
claims of due process violations in removal proceedings. 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 BIA did not abuse its discretion by denying Fortin Miralda’s second
motion to reopen as untimely and number-barred, where it was filed over 17 years
after the agency’s final order, see 8 C.F.R. § 1003.2(c)(2), and he failed to
establish materially changed circumstances in Honduras to qualify for the
regulatory exception to the time limitation, see 8 C.F.R. § 1003.2(c)(3)(ii); see also
Najmabadi v. Holder, 597 F.3d 983, 986 (9th Cir. 2010) (the BIA may deny
a motion to reopen for failure to establish a prima facie case for the underlying
relief sought).
We reject Fortin Miralda’s contention that the BIA violated due process by
failing to consider evidence. See Najmabadi, 597 F.3d at 990-91 (finding the
Board adequately considered petitioner’s evidence and sufficiently announced its
decision); Larita-Martinez v. INS, 220 F.3d 1092, 1095-96 (9th Cir. 2000) (“an
applicant attempting to establish that the Board violated his right to due process by
failing to consider relevant evidence must overcome the presumption that it did
review the evidence”).
We lack jurisdiction to consider Fortin Miralda’s argument that the filing
deadline for his motion to reopen should have been equitably tolled because he
2 14-73115
failed to raise it to the BIA. See Barron v. Ashcroft, 358 F.3d 674, 677-78 (9th
Cir. 2004).
Finally, we lack jurisdiction to review the BIA’s decision not to invoke its
sua sponte authority to reopen proceedings. See Go v. Holder, 744 F.3d 604, 609-
10 (9th Cir. 2014); cf. Bonilla v. Lynch, No. 12-73853, 2016 WL 3741866 (9th Cir.
July 12, 2016).
PETITION FOR REVIEW DENIED in part; DISMISSED in part.
3 14-73115