Juan Soto-Plata v. Eric Holder, Jr.

NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS FILED
FOR THE NINTH CIRCUIT AUG 22 2011
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
JUAN CARLOS SOTO-PLATA, MARIA No. 09-70487
TERESA SOTO and NAYELI SOTO-
PINEDA Agency Nos. A095-179-779,
A095-179-780,
Petitioners, A095-179-781
v. MEMORANDUM*
ERIC H. HOLDER, Jr., Attorney General,
Respondent.
On Petition for Review of an Order of the
Board of Immigration Appeals
Submitted June 22, 2011**
San Francisco, California
Before: HUG, SKOPIL, and BEEZER, Circuit Judges.
Juan Carlos Soto-Plata (“Juan”), Maria Teresa Soto (“Maria”), and Nayeli
Soto-Pineda (“Nayeli”) (collectively the “Soto-Platas”) are natives and citizens of
Mexico who seek to reopen their applications for cancellation of removal, asylum,
*
This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
**
The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
withholding of removal, and relief under the United Nations Convention Against
Torture (“CAT”). On the advice of Julio Cortez (“Cortez”), whom they falsely
believed to be an attorney, the Soto-Platas withdrew their asylum application and
applied for cancellation of removal shortly after being placed in removal
proceedings. The immigration judge (“IJ”) found each of them statutorily
ineligible, and the Board of Immigration Appeals (“BIA”) affirmed. Several years
later, the Soto-Platas filed motions to reconsider and then to reopen. The BIA
denied both as untimely. We deny the Soto-Platas’ petition as to their cancellation
of removal and CAT claims and dismiss the petition as to their asylum and
withholding of removal claims.
The facts are known to the parties. We do not repeat them.
Our jurisdiction is governed by 8 U.S.C. § 1252. We lack jurisdiction to
review claims that were not presented to the BIA. See Barron v. Ashcroft, 358
F.3d 674, 677-78 (9th Cir. 2004). Although the petition for review argues that the
Soto-Platas are eligible for asylum and withholding of removal, neither the motion
to reopen nor the Soto-Platas’ brief in support of that motion addressed these
claims. We therefore dismiss the petition with respect to the asylum and
withholding of removal claims.
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We review the BIA’s refusal to grant the motion to reopen the Soto-Platas’
claims for cancellation of removal and CAT relief for abuse of discretion. INS v.
Doherty, 502 U.S. 314, 323 (1992) (stating that motions to reopen are disfavored).
We review the BIA’s legal determinations de novo and its factual determinations
for substantial evidence. Sharma v. INS, 89 F.3d 545, 547 (9th Cir. 1996).
An immigrant who wishes to introduce new evidence affecting his case
“may file one motion to reopen proceedings,” and that motion must be filed
“within 90 days of the date of entry of a final administrative order of removal.” 8
U.S.C. §§ 1229a(c)(7)(A) & (C)(i). The Soto-Platas do not dispute that they filed
their motion to reopen almost four years late.
Though we regret that the Soto-Platas feel taken advantage of by Cortez, the
BIA did not abuse its discretion by refusing to toll the statute of limitations for
their cancellation of removal claims based upon ineffective assistance of counsel.
Nothing Cortez did before the issuance of the Notice to Appear can form the basis
of an ineffective assistance of counsel claim, even if the Soto-Platas would not
have come to the attention of immigration authorities but for their reliance on
Cortez’s advice. See Balam-Chuc v. Mukasey, 547 F.3d 1044, 1050 (9th Cir.
2008) (citing Lara-Torres v. Ashcroft, 383 F.3d 968, 973-76 (9th Cir. 2004)).
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Nothing Cortez did after the Notice to Appear prejudiced the Soto-Platas
because they were statutorily ineligible for cancellation of removal. Nayeli had no
qualifying relative because she was a single woman with no children. 8 U.S.C.
§ 1229b(b)(1)(D).
Maria did not meet the continuous physical residency requirement. Id.§
1229b(b)(1)(A). Because Maria has never been convicted of a crime, the 10-year
period is measured backward from when she was served with a Notice to Appear
(January 31, 2002). Id. § 1229b(d)(1). An immigrant who leaves the United States
for “any period in excess of 90 days or for any periods in the aggregate exceeding
180 days” has not maintained continuous physical presence. Id. § 1229b(d)(2).
Maria testified that she lived in Mexico for approximately two years between
“some time in 1995” to November 1997.
Because Juan helped Maria and Nayeli illegally reenter the United States in
1997, he cannot show the necessary good moral character. Id. § 1229b(b)(1)(B).
Good moral character encompasses more than just the lack of a criminal record.
Specifically, an immigrant cannot show good moral character if he “knowingly has
encouraged, induced, assisted, abetted, or aided any other alien to [illegally] enter
. . . the United States.” 8 U.S.C. § 1182(a)(6)(E). Unfortunately for Juan, the
limited exception for aliens who smuggle their own family members does not
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apply to cancellation of removal applications. Sanchez v. Holder, 560 F.3d 1028,
1033-34 (9th Cir. 2009) (en banc).
The BIA also did not abuse its discretion in refusing to reopen the Soto-
Platas’ CAT claims based on changed country conditions. “There is no time limit
on the filing of a motion to reopen . . . based on changed country conditions arising
in the country of nationality.” 8 U.S.C. § 1229a(c)(7)(C)(ii); see also 8 C.F.R. §
1003.23(b)(4)(i) (applying changed country conditions exception to CAT claims).
“The motion to reopen shall state the new facts that will be proven at a hearing . . .
and shall be supported by affidavits or other evidentiary material.” Id.§ 1229(a)(c)(7)(B). If that information does not establish prima facie eligibility for
the relief requested, however, the BIA does not abuse its discretion by denying a
motion to reopen. Konstantinova v. INS, 195 F.3d 528, 530 (9th Cir. 1999).
“[G]eneralized evidence of violence and crime in Mexico [that] is not particular to
Petitioners . . . is insufficient to meet [the CAT] standard.” Delgado-Ortiz v.
Holder, 600 F.3d 1148, 1152 (9th Cir. 2010). Because that is all the Soto-Platas
produced, the BIA properly refused to reopen this claim.
DISMISSED in part and DENIED in part.
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