Moreno Monroy v. Garland ( 2023 )

NOT FOR PUBLICATION FILED
UNITED STATES COURT OF APPEALS SEP 25 2023
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
XIOMARA NOHEMI MORENO No. 22-1817
MONROY, Agency No.
A208-898-926
Petitioner,
v. MEMORANDUM*
MERRICK B. GARLAND, Attorney
General,
Respondent.
On Petition for Review of an Order of the
Board of Immigration Appeals
Submitted September 12, 2023**
Before: CANBY, CALLAHAN, and OWENS, Circuit Judges.
Xiomara Nohemi Moreno Monroy, a native and citizen of Guatemala,
petitions pro se for review of the Board of Immigration Appeals’ (“BIA”) order
denying her motion to reopen removal proceedings. Our jurisdiction is governed
*
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).
by 8 U.S.C. § 1252. We review for abuse of discretion the denial of a motion to
reopen. Najmabadi v. Holder, 597 F.3d 983, 986 (9th Cir. 2010). We deny in part
and dismiss in part the petition for review.
The BIA did not abuse its discretion in denying petitioner’s motion to
reopen as untimely, where it was filed over six months after the final removal
order, see 8 U.S.C. § 1229a(c)(7)(C)(i) (motion to reopen must be filed within
ninety days of the final removal order), and petitioner has not established changed
country conditions in Guatemala to qualify for an exception to the filing deadline,
see 8 U.S.C. § 1229a(c)(7)(C)(ii); Toufighi v. Mukasey, 538 F.3d 988, 996-97 (9th
Cir. 2008) (movant must produce material evidence that conditions in country of
nationality had changed); Najmabadi, 597 F.3d at 987-90 (evidence must be
“qualitatively different” to warrant reopening).
To the extent Moreno Monroy challenges the merits of her underlying
claims, we do not review these determinations because the petition for review is
not timely as to the agency order that decided those issues. 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.”).
We also lack jurisdiction to review the BIA’s decision not to reopen
proceedings sua sponte. See Lona v. Barr, 958 F.3d 1225, 1227 (9th Cir. 2020)
(denial of sua sponte reopening is committed to agency discretion and
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unreviewable).
The temporary stay of removal remains in place until the mandate issues.
PETITION FOR REVIEW DENIED in part; DISMISSED in part.
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