Carlos Montanez Soto v. Merrick Garland

• Court: Court of Appeals for the Ninth Circuit
• Decided: September 17, 2021
• Docket: 19-71368
• Status: Unpublished

Opinion

NOT FOR PUBLICATION FILED UNITED STATES COURT OF APPEALS SEP 17 2021 MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS FOR THE NINTH CIRCUIT

CARLOS JAVIER MONTANEZ SOTO, No. 19-71368

Petitioner, Agency No. A095-763-017

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

Respondent.

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

Submitted September 14, 2021**

Before: PAEZ, NGUYEN, and OWENS, Circuit Judges.

Carlos Javier Montanez Soto, a native and citizen of Mexico, petitions for

review of the Board of Immigration Appeals’ (“BIA”) order denying his motion to

reopen and his motion to reconsider removal proceedings. Our jurisdiction is

governed by 8 U.S.C. § 1252. We review for abuse of discretion the denial of a

* 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). motion to reopen and reconsider. Mohammed v. Gonzales, 400 F.3d 785, 791 (9th

Cir. 2005). We review de novo claims of due process violations in immigration

proceedings. Jiang v. Holder, 754 F.3d 733, 738 (9th Cir. 2014). We deny in part

and dismiss in part the petition for review.

The BIA did not abuse its discretion in denying Montanez Soto’s motion to

reopen as untimely where the motion was filed more than 90 days after the final

order of removal, and where Montanez Soto failed to demonstrate a material

change in country conditions in Mexico to qualify for the regulatory exception to

the time limitation for filing a motion to reopen. See 8 C.F.R. §§ 1003.2(c)(2),

(3)(ii); Najmabadi v. Holder, 597 F.3d 983, 990-91 (9th Cir. 2010) (BIA did not

abuse its discretion in denying motion to reopen where petitioner failed to submit

material evidence of qualitatively different country conditions).

To the extent Montanez Soto contends that the denial of his motion to

reopen to apply for CAT relief would be a due process violation, his contention

fails. Lata v. INS, 204 F.3d 1241, 1246 (9th Cir. 2000) (requiring error to prevail

on a due process claim).

The BIA sufficiently explained its rationale in denying sua sponte reopening.

Najmabadi, 597 F.3d at 990 (“What is required is merely that [the BIA] consider

the issues raised, and announce its decision in terms sufficient to enable a

reviewing court to perceive that it has heard and thought and not merely reacted.”

2 19-71368 (internal quotation marks and citation omitted)). Montanez Soto’s contention that

the BIA erred in denying sua sponte reopening for failure to demonstrate

exceptional circumstances does not otherwise raise a legal or constitutional error to

invoke our jurisdiction. See Bonilla v. Lynch, 840 F.3d 575, 588 (9th Cir. 2016)

(“[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.” (citation and internal quotation marks omitted)).

The BIA also did not abuse its discretion in denying Montanez Soto’s

motion to reconsider where he failed to identify any error of law or fact in the

BIA’s prior decision. See 8 C.F.R. § 1003.2(b)(1) (a motion to reconsider must

identify errors of fact or law in a prior decision); Movsisian v. Ashcroft, 395 F.3d

1095, 1098 (9th Cir. 2005) (the BIA abuses its discretion if it acts arbitrarily,

irrationally, or contrary to law); see also Granado-Oseguera v. Mukasey, 546 F.3d

1011, 1015-16 (9th Cir. 2008) (recognizing that failure to comply with a voluntary

departure order renders an applicant statutorily ineligibility for cancellation of

removal for 10 years).

The temporary stay of removal remains in place until issuance of the

mandate.

PETITION FOR REVIEW DENIED in part; DISMISSED in part.

3 19-71368