Jorge Arce-Martinez v. William Barr ( 2020 )

FILED
NOT FOR PUBLICATION
JUN 12 2020
UNITED STATES COURT OF APPEALS MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
JORGE ARCE-MARTINEZ, AKA No. 17-71912
George Martinez Arce,
Agency No. A036-036-823
Petitioner,
v. MEMORANDUM*
WILLIAM P. BARR, Attorney General,
Respondent.
On Petition for Review of an Order of the
Board of Immigration Appeals
Submitted June 1, 2020**
Pasadena, California
Before: FERNANDEZ and LEE, Circuit Judges, and ORRICK,*** District Judge.
Jorge Arce-Martinez, a native and citizen of Mexico, petitions for review of
a decision of the Board of Immigration Appeals (“BIA”) denying his motion to
*
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).
***
The Honorable William Horsley Orrick, United States District Judge
for the Northern District of California, sitting by designation.
reopen as untimely and declining to sua sponte reopen the deportation proceedings.
We deny the petition.
Although Arce did not file his motion within ninety days of the BIA’s final
administrative decision,1 he asserts that his motion was timely pursuant to
equitable tolling because he filed within ninety days after a change of the law in
Bonilla v. Lynch, 840 F.3d 575, 592 (9th Cir. 2016).2 We disagree.
Arce argues that two BIA decisions prevented him from filing his motion to
reopen before Bonilla changed the law. See Matter of Armendarez-Mendez, 24 I.
& N. Dec. 646, 660 (BIA 2008), overruled by Toor v. Lynch, 789 F.3d 1055, 1057,
1064 (9th Cir. 2015); Matter of Lok, 18 I. & N. Dec. 101, 105–06 (BIA 1981).
However, the first, Armendarez-Mendez, was overruled in 2015, over ninety days
before Arce filed his motion to reopen. See Toor, 789 F.3d at 1057, 1064. And,
rather than overruling Lok, Bonilla cited it with approval. See Bonilla, 840 F.3d at
589, 591. Because Bonilla did not change the law applicable to Arce’s motion to
reopen, the BIA did not abuse its discretion in concluding that the filing deadline
1
See 8 C.F.R. § 1003.2(c)(2).
2
See Avagyan v. Holder, 646 F.3d 672, 679 (9th Cir. 2011); cf. Luna v.
Holder, 659 F.3d 753, 760–61 (9th Cir. 2011).
2
was not equitably tolled during the period from the decision in Toor to the decision
in Bonilla.
We have limited jurisdiction to review the BIA’s denial of sua sponte
reopening; we can determine only whether the BIA’s decision rested on a legal or
constitutional error. See Menendez v. Whitaker, 908 F.3d 467, 471 (9th Cir. 2018);
Bonilla, 840 F.3d at 588; Singh v. Holder, 771 F.3d 647, 650 (9th Cir. 2014).
Arce’s sole argument is that the BIA made a legal error in deciding that Bonilla
was not a relevant change in law. As discussed above, the BIA’s decision was
correct.
Petition DENIED.
3