Castellanos-Mendoza v. Garland

NOT FOR PUBLICATION FILED UNITED STATES COURT OF APPEALS APR 4 2024 MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS FOR THE NINTH CIRCUIT WALTER CASTELLANOS-MENDOZA, No. 23-357 Agency No. Petitioner, A205-321-000 v. MEMORANDUM* MERRICK B. GARLAND, Attorney General, Respondent. On Petition for Review of an Order of the Board of Immigration Appeals Submitted March 26, 2024** Before: TASHIMA, SILVERMAN, and KOH, Circuit Judges. Walter Castellanos-Mendoza, a native and citizen of Guatemala, petitions pro se for review of the Board of Immigration Appeals’ (“BIA”) order denying his second motion to reopen and denying a motion to reconsider the denial of his first motion to reopen. Our jurisdiction is governed by 8 U.S.C. § 1252. We review for * 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). abuse of discretion the denial of a motion to reopen and the denial of a motion to reconsider. Mohammed v. Gonzales, 400 F.3d 785, 791 (9th Cir. 2005). We deny in part and dismiss in part the petition for review. The BIA did not abuse its discretion in denying Castellanos-Mendoza’s second motion to reopen as numerically barred and untimely, see 8 U.S.C. § 1229a(c)(7)(A) (only one motion to reopen allowed), (c)(7)(C)(i) (motion to reopen must be filed within ninety days of the final removal order), and he has not established changed country conditions in Guatemala to qualify for an exception, see 8 U.S.C. § 1229a(c)(7)(C)(ii); 8 C.F.R. § 1003.2(c)(3)(ii) (filing limitations do not apply to a motion to reopen “[t]o apply or reapply for asylum or withholding of deportation based on changed circumstances arising in the country of nationality . . . if such evidence is material and was not available and could not have been discovered or presented at the previous hearing”); 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). We generally 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 unreviewable). The BIA did not abuse its discretion in denying Castellanos-Mendoza’s motion to reconsider as untimely, see 8 U.S.C. § 1229a(c)(6)(B) (motion to 2 23-357 reconsider must be filed within thirty days of the final removal order), and he failed to establish any error of fact or law in the BIA’s denial of his first motion to reopen, see 8 C.F.R. § 1003.2(b)(1); Ma v. Ashcroft, 361 F.3d 553, 558 (9th Cir. 2004) (“A petitioner’s motion to reconsider must identify a legal or factual error in the BIA’s prior decision.”). The temporary stay of removal remains in place until the mandate issues. PETITION FOR REVIEW DENIED in part; DISMISSED in part. 3 23-357