Andres Molina-Zavala v. Merrick Garland

• Court: Court of Appeals for the Ninth Circuit
• Decided: December 9, 2024
• Docket: 20-73191
• Status: Unpublished

Opinion

FILED NOT FOR PUBLICATION DEC 9 2024 UNITED STATES COURT OF APPEALS MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS

FOR THE NINTH CIRCUIT

ANDRES MOLINA-ZAVALA, No. 20-73191; 21-274

Petitioner, Agency No. A095-734-430

v. MEMORANDUM* MERRICK B. GARLAND, Attorney General,

Respondent.

On Petition for Review of an Order of the Board of Immigration Appeals

Submitted December 5, 2024** Pasadena, California

Before: BYBEE, IKUTA, and BADE, Circuit Judges.

Andres Molina-Zavala, a native and citizen of El Salvador, petitions for

review of the Board of Immigration Appeals’ (BIA) decision affirming without

opinion the immigration judge’s (IJ) denial of his motion to reopen removal

* 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). proceedings to seek recission of an April 2008 in absentia removal order. In a

companion case, Molina-Zavala petitions for review of the BIA’s order denying his

motion to reconsider its denial of his motion to reopen. We have jurisdiction under

8 U.S.C. §§ 1252(a)(1) and (b)(6), and we deny the petitions for review.

The agency did not abuse its discretion or violate due process by denying

Molina-Zavala’s motion to reopen based on lack of notice because there is proof of

attempted delivery of a notice of hearing to the last address provided by

Molina-Zavala in accordance with 8 U.S.C. § 1229(a)(F)(1)(i).1 See id. § 1229(c);

United States v. Rivera-Valdes, 105 F.4th 1118, 1122–23 (9th Cir. 2024). The BIA

did not err in affirming the decision below without opinion because we can

adequately determine its reasons for denying Molina-Zavala relief. See Lanza v.

Ashcroft, 389 F.3d 917, 927 (9th Cir. 2004). We lack jurisdiction over the BIA’s

decision to reject Molina-Zavala’s opening brief because the regulations granting

the BIA the discretion to do so, 8 C.F.R. §§ 1003.3(a)(3), 1292.1(f), leave the court

with “no meaningful standard against which to judge the agency’s exercise of

1 We do not consider any contention that the notice was mailed to an incorrect address because it is waived. Molina-Zavala does not challenge the IJ’s finding that the notice of hearing was mailed to the last address that Molina-Zavala provided. Any claim that the notice was not mailed to the correct address is unsupported by citations to the record. We review only issues which are argued specifically and distinctly in a party’s opening brief. See Martinez-Serrano v. INS, 94 F.3d 1256, 1259–60 (9th Cir. 1996). 2 discretion.” Perez Perez v. Wolf, 943 F.3d 853, 860 (9th Cir. 2019) (quoting

Pinnacle Armor, Inc. v. United States, 648 F.3d 708, 719 (9th Cir. 2011)); see also

5 U.S.C. § 701(a)(2); Heckler v. Chaney, 470 U.S. 821, 830 (1985). Because

Molina-Zavala failed to establish error or prejudice in the agency’s denial of

reopening, there was no due process violation. See Lata v. INS, 204 F.3d 1241,

1246 (9th Cir. 2000).

Nor did the BIA err in denying Molina Zavala’s motion to reconsider the

denial of his motion to reopen. The BIA did not abuse its discretion in denying his

motion to reconsider as a number-barred motion to reopen because Molina-Zavala

submitted new facts and evidentiary material. See Mohammed v. Gonzalez, 400

F.3d 785, 792 & n.8 (9th Cir. 2005); 8 C.F.R. §§ 1003.2(b)(1), (c). Moreover, the

motion failed to identify any error of fact or law in the BIA’s prior decision

denying reopening. 8 U.S.C. § 1229a(c)(6)(C).

PETITIONS FOR REVIEW DENIED.