Osvaldo Buenrostro-Hernandez v. Robert Wilkinson ( 2021 )

NOT FOR PUBLICATION FILED
UNITED STATES COURT OF APPEALS FEB 19 2021
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
OSVALDO BUENROSTRO- No. 17-73029
HERNANDEZ,
Agency No. A092-998-803
Petitioner,
v. MEMORANDUM*
ROBERT M. WILKINSON, Acting
Attorney General,
Respondent.
On Petition for Review of an Order of the
Board of Immigration Appeals
Submitted February 17, 2021**
Before: FERNANDEZ, BYBEE, and BADE, Circuit Judges.
Osvaldo Buenrostro-Hernandez, a native and citizen of Mexico, petitions pro
se for review of the Board of Immigration Appeals’ (“BIA”) order denying his
motion to reopen removal proceedings. Our jurisdiction is governed by 8 U.S.C.
§ 1252. We review for abuse of discretion the BIA’s denial of a motion to reopen
*
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).
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 Buenrostro-Hernandez’s
motion to reopen as untimely, where it was filed more than five months after the
order of removal became final, and Buenrostro-Hernandez did not establish
changed country conditions in Mexico to qualify for the regulatory exception to the
filing deadline. See 8 C.F.R. § 1003.2(c)(2), (3)(ii); Toufighi v. Mukasey, 538 F.3d
988, 996 (9th Cir. 2008) (movant required to produce material evidence with
motion to reopen that conditions in country of nationality had changed).
We lack jurisdiction to review the BIA’s denial of sua sponte reopening
where Buenrostro-Hernandez has not raised a legal or constitutional error. See
Bonilla, 840 F.3d at 588 (“[T]his court has jurisdiction to review Board decisions
denying sua sponte reopening for the limited purpose of reviewing the reasoning
behind the decisions for legal or constitutional error.”).
Buenrostro-Hernandez’s contentions that the agency violated his right to due
process fail. See Lata v. INS, 204 F.3d 1241, 1246 (9th Cir. 2000) (requiring error
to prevail on a due process claim). We rejected as unsupported by the record
Buenrostro-Hernandez’s contentions that the immigration judge failed to grant a
motion to reopen. We lack jurisdiction to consider Buenrostro-Hernandez’s
contentions relating to the immigration judge’s denial of relief under former INA §
2 17-73029
212(c), 8 U.S.C. § 1182(c) because he failed to file a timely petition for review of
that order. See 8 U.S.C. § 1252(b)(1) (“The petition for review must be filed not
later than 30 days after the date of the final order of removal.”); see also Singh v.
INS, 315 F.3d 1186, 1188 (9th Cir. 2003) (30-day deadline is “mandatory and
jurisdictional”).
PETITION FOR REVIEW DENIED in part; DISMISSED in part.
3 17-73029