Rafael Menchaca v. William Barr ( 2020 )

NOT FOR PUBLICATION FILED
UNITED STATES COURT OF APPEALS MAR 10 2020
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
RAFAEL MENCHACA, No. 18-71458
Petitioner, Agency No. A074-433-282
v.
MEMORANDUM*
WILLIAM P. BARR, Attorney General,
Respondent.
On Petition for Review of an Order of the
Board of Immigration Appeals
Submitted March 3, 2020**
Before: MURGUIA, CHRISTEN, and BADE, Circuit Judges.
Rafael Menchaca, a native and citizen of Mexico, petitions for review of the
Board of Immigration Appeals’ order dismissing his appeal from an immigration
judge’s decision denying his motion to reopen his deportation proceedings
conducted in absentia. Our jurisdiction is governed by 8 U.S.C. § 1252. We
review for abuse of discretion the denial of a motion to reopen. Bonilla v. Lynch,
*
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).
840 F.3d 575, 581 (9th Cir. 2016). We deny in part and dismiss in part the petition
for review.
The agency did not abuse its discretion in denying Menchaca’s motion to
reopen as untimely, where he filed the motion 17 years after his final order of
deportation, and he did not show due diligence for equitable tolling of the filing
deadline. See 8 C.F.R. § 1003.2(c)(2)-(3) (subject to exceptions, a motion to
reopen must be filed no later than 90 days after the date of the final administrative
decision); Avagyan v. Holder, 646 F.3d 672, 679 (9th Cir. 2011) (equitable tolling
is available to a petitioner who is prevented from timely filing a motion to reopen
due to deception, fraud, or error, as long as the petitioner exercises due diligence in
discovering such circumstances).
We lack jurisdiction to review the agency’s denial of sua sponte reopening.
See Bonilla, 840 F.3d at 588.
We also lack jurisdiction to consider Menchaca’s changed country
conditions contention that he raises for the first time in his opening brief because
he did not exhaust this claim before the agency. Barron v. Ashcroft, 358 F.3d 674,
678 (9th Cir. 2004) (generally requiring exhaustion of claims).
PETITION FOR REVIEW DENIED in part; DISMISSED in part.
2 18-71458