Byron Rodriguez-Vasquez v. Jefferson Sessions

Opinion

NOT FOR PUBLICATION FILED UNITED STATES COURT OF APPEALS MAY 21 2018 MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS FOR THE NINTH CIRCUIT

BYRON FRANCISCO RODRIGUEZ- No. 16-72815 VASQUEZ, Agency No. A206-500-136 Petitioner,

v. MEMORANDUM*

JEFFERSON B. SESSIONS III, Attorney General,

Respondent.

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

Submitted May 15, 2018**

Before: SILVERMAN, BEA, and WATFORD, Circuit Judges.

Byron Francisco Rodriguez-Vasquez, a native and citizen of Honduras,

petitions for review of the Board of Immigration Appeals’ (“BIA”) order denying

his motion to reconsider, and his motion to reopen removal proceedings and

reissue its previous decision dismissing his appeal. Our jurisdiction is governed by

* 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). 8 U.S.C. § 1252. We review de novo questions of law, and we review for abuse of

discretion the denial of a motion to reconsider, and a motion to reopen and reissue.

See Ayala v. Sessions, 855 F.3d 1012, 1020 (9th Cir. 2017); Hernandez-Velasquez

v. Holder, 611 F.3d 1073, 1077 (9th Cir. 2010). We deny in part and dismiss in

part the petition for review.

The BIA did not abuse its discretion in denying Rodriguez-Vasquez’s

motion to reconsider as untimely, where he filed it more than 30 days after the

final order of removal. See 8 U.S.C. § 1229a(c)(6)(B); 8 C.F.R. § 1003.2(b)(2).

The BIA did not abuse its discretion in denying Rodriguez-Vasquez’s

motion to reopen and reissue its January 8, 2016, order, where Rodriguez-Vasquez

acknowledged in his declaration that he received the notice “a few days” after the

BIA issued it, and he does not allege ineffective assistance of counsel. See Singh v.

Napolitano, 649 F.3d 899, 901 (9th Cir. 2011) (the BIA has reissued decisions

where an alien has shown lack of notice due to administrative error or ineffective

assistance of counsel). The BIA did not ignore evidence or argument in reaching

this determination. See Najmabadi v. Holder, 597 F.3d 983, 990 (9th Cir. 2010).

We lack jurisdiction to review Rodriguez-Vasquez’s challenges to the BIA’s

discretionary decision not to reconsider proceedings sua sponte, absent a claim of

legal or constitutional error. See Bonilla v. Lynch, 840 F.3d 575, 588 (9th Cir.

2016) (“[T]his court has jurisdiction to review Board decisions denying sua sponte

2 16-72815 reopening for the limited purpose of reviewing the reasoning behind the decisions

for legal or constitutional error.”). Rodriguez-Vasquez presents no such claim

where, contrary to his contentions, the BIA applied the correct standard, did not

fail to consider evidence or argument, and sufficiently articulated its reasoning. See

Najmabadi, 597 F.3d at 990. Accordingly, Rodriguez-Vasquez’s contention that

the BIA violated due process also fails. See Lata v. INS, 204 F.3d 1241, 1246 (9th

Cir. 2000) (requiring error and substantial prejudice to prevail on a due process

claim).

PETITION FOR REVIEW DENIED in part; DISMISSED in part.

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