Hector Sandoval-Perez v. Merrick Garland ( 2022 )

NOT FOR PUBLICATION FILED
UNITED STATES COURT OF APPEALS MAR 16 2022
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
HECTOR SANDOVAL-PEREZ, No. 18-71582
Petitioner, Agency No. A092-637-831
v.
MEMORANDUM*
MERRICK B. GARLAND, Attorney
General,
Respondent.
On Petition for Review of an Order of the
Board of Immigration Appeals
Submitted March 14, 2022**
Las Vegas, Nevada
Before: KLEINFELD and BENNETT, Circuit Judges, and COGAN,*** District
Judge.
Petitioner Hector Sandoval-Perez, a native and citizen of Mexico, seeks
review of a decision of the Board of Immigration Appeals (“BIA”) denying his
*
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 Brian M. Cogan, United States District Judge for the
Eastern District of New York, sitting by designation.
motion to reopen. We have jurisdiction under 8 U.S.C. § 1252(a) and deny the
petition.
The BIA’s denial of a motion to reopen is reviewed for abuse of discretion.
Oyeniran v. Holder, 672 F.3d 800, 806 (9th Cir. 2012). A motion to reopen must
generally be filed no later than ninety days after the final administrative decision.
8 C.F.R. § 1003.2(c)(2). This deadline does not apply if the motion to reopen is to
apply for asylum based on changed circumstances in the country to which removal
has been ordered and is based on material evidence that was unavailable or
undiscoverable at the prior hearing. Id. § 1003.2(c)(3)(ii). Sandoval-Perez, who
filed the instant untimely motion to reopen in 2017 after the BIA dismissed his
appeal and denied his motion to reconsider in 2004, argued that this exception
applied to him.
The BIA found that it lacked jurisdiction over Sandoval-Perez’s asylum
application because he was not physically present in the United States. We agree.
Sandoval-Perez, who currently resides in Mexico, is statutorily ineligible for
asylum. See 8 U.S.C. § 1158(a)(1) (“Any alien who is physically present in the
United States . . . may apply for asylum.”). The BIA correctly found that it lacked
the authority to parole Sandoval-Perez into the United States to consider the
application. That authority lies with the Secretary of Homeland Security. 8 C.F.R.
§ 212.5. We therefore need not reach Sandoval-Perez’s arguments regarding
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changed circumstances or prima facie eligibility.
Sandoval-Perez’s argument that the BIA should remand for him to pursue
cancellation of removal for certain lawful permanent residents was waived on
appeal. See Castro-Perez v. Gonzalez, 409 F.3d 1069, 1072 (9th Cir. 2005).
PETITION DENIED.
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