Porcayo-Garcia v. Garland

NOT FOR PUBLICATION FILED UNITED STATES COURT OF APPEALS DEC 19 2023 MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS FOR THE NINTH CIRCUIT ELEAZAR PORCAYO-GARCIA, No. 22-1830 Agency No. Petitioner, A078-001-738 v. MEMORANDUM* MERRICK B. GARLAND, Attorney General, Respondent. On Petition for Review of an Order of the Board of Immigration Appeals Submitted December 12, 2023** Before: WALLACE, LEE, and BUMATAY, Circuit Judges. Eleazar Porcayo-Garcia, a native and citizen of Mexico, petitions for review of the Board of Immigration Appeals’ (“BIA”) order denying his motion to reopen removal proceedings. We have jurisdiction under 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. Najmabadi v. Holder, 597 F.3d 983, 986 (9th Cir. 2010). We deny the petition for review. The BIA did not abuse its discretion in denying Porcayo-Garcia’s motion to reopen as untimely, where it was filed five months after the order of removal became final, 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 where Porcayo-Garcia has not established changed country conditions in Mexico 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). The temporary stay of removal remains in place until the mandate issues. PETITION FOR REVIEW DENIED. 2 22-1830