Antonio Serpa-Espinoza v. Loretta E. Lynch , 620 F. App'x 636 ( 2015 )

FILED
NOT FOR PUBLICATION
OCT 22 2015
UNITED STATES COURT OF APPEALS MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
ANTONIO SERPA-ESPINOZA, No. 12-71228
Petitioner, Agency No. A029-225-159
v.
MEMORANDUM*
LORETTA E. LYNCH, Attorney General,
Respondent.
On Petition for Review of an Order of the
Board of Immigration Appeals
Submitted October 20, 2015**
San Francisco, California
Before: WALLACE, SILVERMAN, and CHRISTEN, Circuit Judges.
Antonio Serpa-Espinoza, a native and citizen of Peru, petitions for review of
the Board of Immigration Appeals’s denial of a motion to reconsider its denial of a
previous motion to reopen. We have jurisdiction to consider the reconsideration
order pursuant to 8 U.S.C. § 1251(b)(1). We review the denial of the motion for an
*
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).
abuse of discretion and the Board’s interpretation of the immigration laws de novo.
Minasyan v. Mukasey, 553 F.3d 1223, 1227 (9th Cir. 2009). We deny in part and
dismiss in part the petition for review.
Serpa-Espinoza argues that the Board abused its discretion when it refused
to reconsider whether he had established changed country conditions, which would
allow him to file a motion to reopen more than 12 years after his final order of
removal. He claimed that the Board erred because United States Citizen and
Immigration Service separately found that his wife had established either changed
or extraordinary circumstances to excuse her separate, untimely asylum
application. However, the Board did not abuse its discretion by holding that the
two decisions did not conflict. There is no evidence in the record to establish that
Serpa-Espinoza’s wife established changed country conditions or that her separate
application was identical to his application. Like the Board, we have recognized
that the exception for filing an untimely motion to reopen is much narrower than
the exception for filing an untimely asylum application. Chen v. Mukasey, 524
F.3d 1028, 1030 (9th Cir. 2008); He v. Gonzales, 501 F.3d 1128, 1133 n.9 (9th Cir.
2007); compare 8 U.S.C. § 1229a(c)(7)(C)(ii) and 8 C.F.R. § 1003.2(c)(3)(ii) with
8 U.S.C. § 1158(a)(2)(D) and 8 C.F.R. §§ 1208.4(a)(4)(i), (5).
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In any event, Serpa-Espinoza did not make a prima facie showing that he
was entitled to relief from removal. He argues that the Board failed to consider the
fact that his wife had demonstrated prima facie eligibility for relief from removal.
However, he did not make this argument to the Board, and the Board considered all
of the arguments he made in his motion for reconsideration.
Finally, we lack jurisdiction to consider Serpa-Espinoza’s procedural due
process claim because he did not raise the claim to the Board. Tall v. Mukasey,
517 F.3d 1115, 1120 (9th Cir. 2008).
PETITION FOR REVIEW DENIED IN PART AND DISMISSED IN
PART.
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