BUENROSTRO HERNANDEZ v. WILKINSON (2021)

United States Court of Appeals, Ninth Circuit.2021-02-19No. No. 17-73029

Summary · law.co

Holding. The petition for review was denied in part and dismissed in part. The board did not abuse its discretion in denying the motion to reopen as untimely, and the court lacked jurisdiction to review certain other claims due to jurisdictional defects and procedural failures to timely appeal.

Osvaldo Buenrostro-Hernandez, a Mexican citizen, sought review of an immigration board decision denying his motion to reopen removal proceedings. The court examined whether the board abused its discretion in rejecting his motion as untimely—filed more than five months after his removal order became final—and whether he qualified for an exception based on changed conditions in Mexico. He had not submitted material evidence demonstrating such changed conditions, so the timing bar applied.

The court also addressed whether it could review the board's decision not to reopen sua sponte (on its own motion), concluding it lacked jurisdiction to do so absent a legal or constitutional error. The petitioner's claims of due process violations were unsupported by the record. Additionally, the court declined to consider his arguments about the immigration judge's denial of relief under a specific immigration statute because he failed to file a timely challenge to that ruling within the required 30-day window.

Summary generated by law.co from the public-domain opinion. The opinion text itself is public domain.

Key issues

Whether a motion to reopen filed over five months late qualifies for an exception based on changed country conditions
Scope of appellate jurisdiction to review a board's denial of sua sponte reopening
Whether due process claims were supported by the record
Whether the court had jurisdiction over untimely-appealed immigration judge decisions

Procedural posture

The petitioner sought appellate review of the Board of Immigration Appeals' order denying his motion to reopen removal proceedings.

Authorities cited

No cited authorities resolved to law.co cases yet.

Opinion · public domain

MEMORANDUM **

Osvaldo Buenrostro-Hernandez, a native and citizen of Mexico, petitions pro se for review of the Board of Immigration Appeals’ (“BIA”) order denying his motion to reopen removal proceedings. Our jurisdiction is governed by 8 U.S.C. § 1252. We review for abuse of discretion the BIAs denial of a motion to reopen and review de novo questions of law. Bonilla v. Lynch, 840 F.3d 575, 581 (9th Cir. 2016). We deny in part and dismiss in part the petition for review.

The BIA did not abuse its discretion in denying Buenrostro-Hernandezs motion to reopen as untimely, where it was filed more than five months after the order of removal became final, and Buenrostro-Hernandez did not establish changed country conditions in Mexico to qualify for the regulatory exception to the filing deadline. See 8 C.F.R. § 1003.2(c)(2), (3)(ii); Toufighi v. Mukasey, 538 F.3d 988, 996 (9th Cir. 2008) (movant required to produce material evidence with motion to reopen that conditions in country of nationality had changed).

We lack jurisdiction to review the BIAs denial of sua sponte reopening where Buenrostro-Hernandez has not raised a legal or constitutional error. See Bonilla, 840 F.3d at 588 (“[T]his court has jurisdiction to review Board decisions denying sua sponte reopening for the limited purpose of reviewing the reasoning behind the decisions for legal or constitutional error.”).

Buenrostro-Hernandezs contentions that the agency violated his right to due process fail. See Lata v. INS, 204 F.3d 1241, 1246 (9th Cir. 2000) (requiring error to prevail on a due process claim). We rejected as unsupported by the record Buenrostro-Hernandezs contentions that the immigration judge failed to grant a motion to reopen. We lack jurisdiction to consider Buenrostro-Hernandezs contentions relating to the immigration judges denial of relief under former INA § 212(c), 8 U.S.C. § 1182(c) because he failed to file a timely petition for review of that order. 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.”); see also Singh v. INS, 315 F.3d 1186, 1188 (9th Cir. 2003) (30-day deadline is “mandatory and jurisdictional”).

PETITION FOR REVIEW DENIED in part; DISMISSED in part.