Cesar Sanchez v. Merrick Garland

• Court: Court of Appeals for the Ninth Circuit
• Decided: November 18, 2024
• Docket: 17-70880
• Status: Unpublished

Opinion

NOT FOR PUBLICATION FILED UNITED STATES COURT OF APPEALS NOV 18 2024 MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS FOR THE NINTH CIRCUIT

CESAR MOISES SANCHEZ, No. 17-70880

Petitioner, Agency No. A094-301-658

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

Respondent.

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

Submitted November 14, 2024** San Francisco, California

Before: GOULD, SUNG, and DE ALBA, Circuit Judges.

Cesar Moises Sanchez, a native and citizen of Honduras,1 petitions for

* 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). 1 In Section III.A of his brief, Sanchez states that he is a native and citizen of El Salvador. This statement is also in his brief before the BIA. However, Petitioner’s brief elsewhere says that Sanchez is a native and citizen of Honduras, as does Sanchez’s declaration made under penalty of perjury.

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

reopen his in absentia removal order. We have jurisdiction under 8 U.S.C. § 1252.

We review the BIA’s denial of a motion to reconsider or reopen for abuse of

discretion. Tadevosyan v. Holder, 743 F.3d 1250, 1252 (9th Cir. 2014). Where the

BIA affirmed the IJ decision and added its own reasoning, we review both

decisions. Duran-Rodriguez v. Barr, 918 F.3d 1025, 1027–28 (9th Cir. 2019). We

review the legal determinations de novo and the factual determinations for

substantial evidence. Gutierrez-Alm v. Garland, 62 F.4th 1186, 1194 (9th Cir.

2023). We deny in part and dismiss in part the petition for review.

1. The BIA did not abuse its discretion in denying Sanchez’s motion to

reopen as untimely. Although generally motions to reopen deportation

proceedings must be filed within ninety days of the final administrative decision

being rendered, motions filed for the purpose of applying for asylum or

withholding based on changed circumstances in the country of nationality

constitute an exception to that time limit. See 8 C.F.R. § 1003.2(c). To establish a

country-conditions change sufficient to excuse an untimely motion to reopen, the

evidence must be “‘qualitatively different’ from the evidence presented at the

previous hearing.” Najmabadi v. Holder, 597 F.3d 983, 987 (9th Cir. 2010)

(quoting Malty v. Ashcroft, 381 F.3d 942, 945–46 (9th Cir. 2004)). “General

references to ‘continuing’ or ‘remaining’ problems is not evidence of a change in a

COA 2 country’s conditions.” Rodriguez v. Garland, 990 F.3d 1205, 1210 (9th Cir. 2021)

(citing Najmabadi, 597 F.3d at 989).

The BIA did not abuse its discretion in finding no material change in country

conditions where Sanchez failed to present evidence of country conditions in 2008

either at his prior hearing or in making this motion to reopen and thus did not

provide sufficient evidence of changed country conditions. Sanchez’s contention

that his attached reports and articles demonstrate a “drastic[] increase” in gang-

related violence and governmental corruption is not supported by the record.

Rather, the reports Sanchez submitted demonstrate only continuing violence and

corruption, with no specific comparison to conditions in 2008.

Sanchez also argues that the changed circumstances exception to the filing

deadline applies because there was a change in U.S. asylum law, citing Henriquez-

Rivas v. Holder, 707 F.3d 1081 (9th Cir. 2013). Although a change in law may

support equitable tolling, Lona v. Barr, 958 F.3d 1225, 1230–31 (9th Cir. 2020), it

does not qualify as a changed circumstance, Azanor v. Ashcroft, 364 F.3d 1013,

1022 (9th Cir. 2004).2

2 We can “reasonably [] discern[]” the BIA’s rejection of Sanchez’s argument based on a change in law here, especially when it expressly addressed and rejected the same argument on Sanchez’s prior motion to reopen. Hernandez v. Garland, 52 F.4th 757, 768 (9th Cir. 2022) (citations omitted); see also Lona, 958 F.3d at 1231 (reviewing BIA’s implicit rejection of petitioner’s argument).

COA 3 2. We lack jurisdiction to review the agency’s discretionary decision not to

reopen proceedings sua sponte. Because Sanchez does not raise a colorable

constitutional claim or question of law that would invoke our jurisdiction, we

cannot review this issue. See Mejia-Hernandez v. Holder, 633 F.3d 818, 823–24

(9th Cir. 2011); cf. Bonilla v. Lynch, 840 F.3d 575, 588 (9th Cir. 2016)

(recognizing “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”).

PETITION DENIED in part; DISMISSED in part.

COA 4