Catarino Mendoza-Valdez v. William Barr

• Court: Court of Appeals for the Ninth Circuit
• Decided: November 27, 2019
• Docket: 16-73800
• Status: Unpublished

Opinion

NOT FOR PUBLICATION FILED UNITED STATES COURT OF APPEALS NOV 27 2019 MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS FOR THE NINTH CIRCUIT

CATARINO MENDOZA-VALDEZ, AKA No. 16-73800 Jose Castillo, Agency No. A071-954-652 Petitioner,

v. MEMORANDUM*

WILLIAM P. BARR, Attorney General,

Respondent.

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

Argued and Submitted November 13, 2019 San Francisco, California

Before: BENNETT and LEE, Circuit Judges, and PIERSOL,** District Judge.

Catarino Mendoza-Valdez, a native and citizen of Mexico, petitions for

review of the Board of Immigration Appeals’ decision affirming the dismissal of his

motion to reopen. We DENY the petition.

Mendoza-Valdez concedes that he did not file his motion to reopen within the

* This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3. ** The Honorable Lawrence L. Piersol, United States District Judge for the District of South Dakota, sitting by designation. 90-day time limit. See 8 C.F.R. § 1003.23(b) (motions to reopen must be filed within

90 days of entry of a final order of removal, deportation, or exclusion, or on or before

September 30, 1996, whichever is later). Mendoza-Valdez seeks to excuse this

untimely filing because of his vacated conviction, citing to Wiedersperg v. INS, 896

F.2d 1179 (9th Cir. 1990), and Cardoso-Tlaseca v. Gonzales, 460 F.3d 1102 (9th

Cir. 2006).

Neither Wiedersperg nor Cardoso-Tlaseca, however, addresses procedural

time limitations. Rather, they discuss the “departure bar,” a jurisdictional bar that

prohibits an alien from making a motion to reopen or reconsider after leaving the

United States. See Wiedersperg, 896 F.2d at 1181–82; Cardoso-Tlaseca, 460 F.3d

at 1106–07. Indeed, Cardoso-Tlaseca dealt with a timely motion to reopen, 460

F.3d at 1104–05, and procedural time limitations were not in effect at the time

Wiedersperg was decided. See Executive Office for Immigration Review; Motions

and Appeals in Immigration Proceedings, 61 Fed. Reg. 18,900 (April 29, 1996)

(final rule establishing the 90-day time limit for motions to reopen). Accordingly,

Wiedersperg and Cardoso-Tlaseca do not excuse Mendoza-Valdez’s failure to file

his motion to reopen within the prescribed time limit.

PETITION FOR REVIEW DENIED.