Maria De La O-Hernandez v. William Barr ( 2020 )

NOT FOR PUBLICATION FILED
UNITED STATES COURT OF APPEALS AUG 19 2020
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
MARIA LUCIA DE LA O-HERNANDEZ, No. 15-70008
Petitioner, Agency No. A201-231-840
v.
MEMORANDUM*
WILLIAM P. BARR, Attorney General,
Respondent.
On Petition for Review of an Order of the
Board of Immigration Appeals
Submitted August 17, 2020**
Before: TROTT, SILVERMAN, and N.R. SMITH, Circuit Judges.
Maria Lucia De La O-Hernandez, a native and citizen of El Salvador,
petitions pro se for review of the Board of Immigration Appeals’ (“BIA”) order
denying her motion to reconsider its order dismissing her appeal from an
immigration judge’s (“IJ”) decision denying her application for relief.
*
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).
Our jurisdiction is governed by 8 U.S.C. § 1252. We review for abuse of
discretion the denial of a motion to reconsider or reopen. Cano-Merida v. INS, 311
F.3d 960, 964 (9th Cir. 2002). We dismiss in part and deny in part the petition for
review.
We lack jurisdiction to review the BIA’s underlying dismissal order because
it was issued on July 3, 2014, and De La O-Hernandez did not file this petition for
review until January 2, 2015. See Singh v. Lynch, 835 F.3d 880, 882 (9th Cir.
2016) (“A petition for review must be filed not later than 30 days after the date of
the final order of removal. This deadline is mandatory and jurisdictional.”)
(citation and internal quotation marks omitted); Stone v. INS, 514 U.S. 386, 405
(1995) (“[A] deportation order is final, and reviewable, when issued. Its finality is
not affected by the subsequent filing of a motion to reconsider.”).
The BIA did not abuse its discretion by denying De La O-Hernandez’s
motion to reconsider because, as the agency noted, she did not identify any errors
of fact or law in the BIA’s decision. 8 C.F.R. § 1003.2(b)(1); Ma v. Ashcroft, 361
F.3d 553, 558 (9th Cir. 2004) (“A petitioner’s motion to reconsider must identify a
legal or factual error in the BIA’s prior decision.”); see also Zetino v. Holder, 622
F.3d 1007, 1016 (9th Cir. 2010) (an applicant’s “desire to be free from harassment
by criminals motivated by theft or random violence by gang members bears no
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nexus to a protected ground”); Aden v. Holder, 589 F.3d 1040, 1047 (9th Cir.
2009) (stating the requirements for establishing eligibility for CAT protection).
To the extent that the motion to reconsider could be construed as a motion to
reopen, the denial of the motion was not an abuse of discretion because, as the
agency also noted, De La O-Hernandez did not introduce new evidence that could
not have been obtained earlier and that would likely have changed the outcome of
her case. 8 C.F.R. § 1003.2(c)(1); Shin v. Mukasey, 547 F.3d 1019, 1025 (9th Cir.
2008) (“Aliens who seek to remand or reopen proceedings to pursue relief bear a
‘heavy burden’ of proving that, if proceedings were reopened, the new evidence
would likely change the result in the case.”) (quoting Matter of Coelho, 20 I. & N.
Dec. 464, 473 (BIA 1992)).
PETITION FOR REVIEW DISMISSED in part; DENIED in part.
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