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 2020-09

Edgar Gonzales-Rosales v. William Barr ( 2020 )


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  •                               NOT FOR PUBLICATION                        FILED
UNITED STATES COURT OF APPEALS                        SEP 16 2020
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
EDGAR NARSISO GONZALES-                         No.    19-71039
ROSALES,
Agency No. A029-268-955
Petitioner,
v.                                             MEMORANDUM*
WILLIAM P. BARR, Attorney General,
Respondent.
On Petition for Review of an Order of the
Board of Immigration Appeals
Submitted September 8, 2020**
Before:      TASHIMA, SILVERMAN, and OWENS, Circuit Judges.
Edgar Narsiso Gonzales-Rosales, a native and citizen of El Salvador,
petitions for review of the Board of Immigration Appeals’ (“BIA”) order denying
his motion to reopen and terminate deportation proceedings. Our jurisdiction is
governed by
    8 U.S.C. § 1252
    . We review for abuse of discretion the denial of a
*
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).
motion to reopen and review de novo questions of law. Bonilla v. Lynch,
    840 F.3d 575
    , 581 (9th Cir. 2016). We deny in part and dismiss in part the petition for
review.
The BIA did not abuse its discretion in denying Gonzales-Rosales’s motion
to reopen as untimely, where he filed the motion nearly 19 years after his final
order of deportation and failed to show he qualifies for any exception to the filing
deadline. See
    8 C.F.R. § 1003.2
    (a) (“The Board has discretion to deny a motion to
reopen even if the party moving has made out a prima facie case for relief.”),
§ 1003.2 (c) (setting forth filing deadline and exceptions). Gonzales-Rosales’s
contentions that the BIA mischaracterized precedent or otherwise failed to consider
required factors in its analysis are not supported by the record.
We lack jurisdiction to consider Gonzales-Rosales’s contentions that he
lacked notice of his hearing or failed to appear due to exceptional circumstances
based on advice from an asylum officer because he did not raise these contentions
in this motion to reopen. Barron v. Ashcroft,
    358 F.3d 674
    , 678 (9th Cir. 2004)
(generally requiring exhaustion of claims). Accordingly, Gonzales-Rosales’s
contention that the BIA violated due process in not considering these contentions
fails. See Lata v. INS,
    204 F.3d 1241
    , 1246 (9th Cir. 2000) (a petitioner must show
error to prevail on a due process claim).
Finally, Gonzales-Rosales’s contention that the agency lacked jurisdiction
2                                  19-71039
under Pereira v. Sessions,
    138 S. Ct. 2105
     (2018), also fails. See
    8 U.S.C. § 1252
    (b) (1990) (deferring to regulations to establish requirements to provide
notice of the deportation proceedings);
    8 C.F.R. § 242.1
    (b) (1990) (not requiring
the time or place at which proceedings will be held to be included in the order to
show cause); see also Aguilar Fermin v. Barr,
    958 F.3d 887
    , 895 (9th Cir. 2020)
(omission of certain information from notice to appear can be cured for
jurisdictional purposes by later hearing notice).
As stated in the court’s June 24, 2019, order, the temporary stay of removal
remains in place until issuance of the mandate.
PETITION FOR REVIEW DENIED in part; DISMISSED in part.
3                                   19-71039