Daniel Ortiz Solano v. Merrick Garland ( 2023 )

NOT FOR PUBLICATION FILED
UNITED STATES COURT OF APPEALS APR 18 2023
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
DANIEL ORTIZ SOLANO, No. 18-72329
Agency No. A096-356-404
Petitioner,
v. MEMORANDUM*
MERRICK B. GARLAND, Attorney
General,
Respondent.
On Petition for Review of an Order of the
Board of Immigration Appeals
Submitted April 14, 2023**
San Francisco, California
Before: S.R. THOMAS AND H.A. THOMAS, Circuit Judges, and RAKOFF,***
District Judge.
In 2005, Petitioner Daniel Ortiz Solano (“Petitioner”), a native and citizen of
*
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).
***
The Honorable Jed S. Rakoff, United States District Judge for the
Southern District of New York, sitting by designation.
Mexico, applied for cancellation of removal. 1 The Immigration Judge (“IJ”) denied
Petitioner’s application, and the Board of Immigration Appeals (“BIA”) affirmed.
Over a decade later, Petitioner filed a motion to reopen proceedings, seeking to apply
for asylum based on changed circumstances in Mexico. The BIA denied Petitioner’s
motion, first finding that his motion was untimely, and then declining to exercise its
discretionary authority to reopen proceedings sua sponte. Petitioner then sought this
Court’s review. We deny the petition in part and dismiss it in part.
The first issue raised by Petitioner’s appeal is whether the BIA abused its
discretion when it determined that Petitioner’s motion was time-barred. See Malty v.
Ashcroft, 381 F.3d 942, 945 (9th Cir. 2004) (“We review the BIA's denial of a
motion to reopen for an abuse of discretion.”). We have jurisdiction over this claim
pursuant to 8 U.S.C. § 1252(a). Ordinarily, a motion to reopen deportation
proceedings must be filed within 90 days of the date upon which the final
administrative decision was rendered. See 8 C.F.R. § 1003.2(c)(2). But an exception
to this rule applies to motions filed for the purpose of applying (or reapplying) “for
asylum or withholding of deportation based on changed circumstances arising in the
country of nationality or in the country to which deportation has been ordered.” 8
1
Petitioner initially applied for asylum, withholding of removal, and
protection under the Convention Against Torture, but withdrew those applications
in favor of an application for cancellation of removal.
2
C.F.R. § 1003.2(c)(3)(ii). Since the BIA found that circumstances had not changed
in Mexico (the country to which Petitioner had been ordered deported), it concluded
that Petitioner’s motion was time-barred.
The BIA did not abuse its discretion in reaching this conclusion. The record
shows that Petitioner only produced generalized allegations that cartel violence in
Mexico was on the rise and provided no particularized reason why he would be
subject to it. See Najmabadi v. Holder, 597 F.3d 983, 990 (9th Cir. 2010) (requiring
an applicant to demonstrate “that her predicament is appreciably different from the
dangers faced by her fellow citizens” (quoting Singh v. INS, 134 F.3d 962, 967 (9th
Cir. 1998))).
Petitioner also contends that the BIA erred in declining to exercise its
authority to reopen proceedings sua sponte. But we lack jurisdiction to review a
Board decision to deny sua sponte reopening, unless such a decision was based on
legal or constitutional error. See Bonilla v. Lynch, 840 F.3d 575, 588 (9th Cir. 2016).
Since we find no legal or constitutional error in the BIA’s denial of sua sponte
reopening, we have no jurisdiction to review it.
The petition is DENIED IN PART AND DISMISSED IN PART.
3