Catarino Mendoza-Valdez v. William Barr

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NOT FOR PUBLICATION FILED UNITED STATES COURT OF APPEALS NOV 27 2019 MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS FOR THE NINTH CIRCUIT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