Jose Vasquez v. William Barr ( 2020 )

NOT FOR PUBLICATION FILED
UNITED STATES COURT OF APPEALS DEC 10 2020
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
JOSE MIGUEL VASQUEZ, No. 19-71344
Petitioner, Agency No. A205-721-495
v.
MEMORANDUM*
WILLIAM P. BARR, Attorney General,
Respondent.
On Petition for Review of an Order of the
Board of Immigration Appeals
Submitted December 2, 2020**
Before: WALLACE, CLIFTON, and BRESS, Circuit Judges.
Jose Miguel Vasquez, a native and citizen of Mexico, petitions 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. Najmabadi v.
Holder, 597 F.3d 983, 986 (9th Cir. 2010). We review de novo claims of due
*
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).
process violations in immigration proceedings. Jiang v. Holder, 754 F.3d 733, 738
(9th Cir. 2014). We deny in part and dismiss in part the petition for review.
The BIA did not abuse its discretion in denying Vasquez’s motion to reopen
where he failed to establish prima facie eligibility for asylum, withholding of
removal, or CAT protection. See Lopez-Vasquez v. Holder, 706 F.3d 1072, 1080
(9th Cir. 2013) (“The BIA is entitled to deny a motion to reopen where the
applicant fails to demonstrate prima facie eligibility for the underlying relief.”).
We lack jurisdiction to consider Vasquez’s contention that the BIA should revisit
its determination that he has been convicted of a particularly serious crime. See
Barron v. Ashcroft, 358 F.3d 674, 677-78 (9th Cir. 2004) (petitioner must exhaust
issues or claims in administrative proceedings below).
Vasquez’s contention that the BIA denied him due process by failing to
determine expressly whether to reopen proceedings sua sponte fails, because he did
not demonstrate that he was prejudiced by that error. See Lata v. INS, 204 F.3d
1241, 1246 (9th Cir. 2000) (requiring error and substantial prejudice to prevail on a
due process claim); see also Bonilla v. Lynch, 840 F.3d 575, 585 (9th Cir. 2016)
(recognizing that the BIA’s authority to reopen sua sponte is limited to exceptional
situations and “is not meant to be used as a general cure for filing defects or to
otherwise circumvent the regulations” (citation and internal quotation marks
omitted)).
2
On October 22, 2019, the court granted a stay of removal. The stay of
removal remains in place until issuance of the mandate.
PETITION FOR REVIEW DENIED in part; DISMISSED in part.
3