Maria Moreno De Rios v. Loretta E. Lynch

FILED
NOT FOR PUBLICATION JAN 24 2017
MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
MARIA HORTENCIA MORENO DE No. 14-73692
RIOS,
Agency No. A075-501-332
Petitioner,
v. MEMORANDUM*
LORETTA E. LYNCH, Attorney General,
Respondent.
On Petition for Review of an Order of the
Board of Immigration Appeals
Submitted January 18, 2017**
Before: TROTT, TASHIMA, and CALLAHAN, Circuit Judges.
Maria Hortencia Moreno De Rios, a native and citizen of Mexico, petitions
for review of the Board of Immigration Appeals’ (“BIA”) order denying her
motion to reopen removal proceedings. Our jurisdiction is governed by 8 U.S.C.
§ 1252. We review for abuse of discretion the denial of a motion to reopen. Lin v.
*
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).
Holder, 588 F.3d 981, 984 (9th Cir. 2009). We deny in part and dismiss in part the
petition for review.
The BIA did not abuse its discretion in denying Moreno De Rios’s motion to
reopen as untimely, where the motion was filed twelve years after her final order of
removal, see 8 C.F.R. § 1003.2(c)(2), and she did not demonstrate the due
diligence necessary to warrant equitable tolling of the filing deadline, see Avagyan
v. Holder, 646 F.3d 672, 679 (9th Cir. 2011) (equitable tolling is available to an
alien who is prevented from filing a motion to reopen due to deception, fraud, or
error, as long as the alien exercises due diligence in discovering such
circumstances). Moreno De Rios also failed to present sufficient evidence of
materially changed country conditions in Mexico to qualify for the regulatory
exception to the filing deadline. See 8 C.F.R. § 1003.2(c)(3)(ii); Lin, 588 F.3d at
989 (BIA’s determination that petitioner did not establish materially changed
country conditions was not “arbitrary, irrational, or contrary to law”).
We reject Moreno De Rios’s contentions that the BIA failed to consider
evidence and arguments presented in her motion, or insufficiently explained its
decision. See Najmabadi v. Holder, 597 F.3d 983, 990 (9th Cir. 2010) (the agency
must “merely . . . announce its decision in terms sufficient to enable a reviewing
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court to perceive that it has heard and thought and not merely reacted” (citation and
quotation marks omitted)).
We lack jurisdiction to consider Moreno De Rios’s unexhausted due process
contention regarding the withdrawal of her asylum application. See Barron v.
Ashcroft, 358 F.3d 674, 677-78 (9th Cir. 2004) (explaining that due process claims,
procedural in nature, must be exhausted).
To the extent Moreno De Rios alleges the immigration judge violated her
due process rights during her 1999 proceedings, this petition is not timely as to that
order. See 8 U.S.C. § 1252(b)(1).
To the extent Moreno De Rios seeks prosecutorial discretion, we lack
jurisdiction to consider such a request. See Vilchiz-Soto v. Holder, 688 F.3d 642,
644 (9th Cir. 2012) (order).
In light of our disposition, we do not reach Moreno De Rios’s remaining
contentions.
PETITION FOR REVIEW DENIED in part, DISMISSED in part.
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