Damaris Guifarro-Aceituno v. Merrick Garland

• Court: Court of Appeals for the Ninth Circuit
• Decided: December 23, 2024
• Docket: 20-72976
• Status: Unpublished

Opinion

NOT FOR PUBLICATION FILED UNITED STATES COURT OF APPEALS DEC 23 2024 MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS FOR THE NINTH CIRCUIT

DAMARIS GABRIELA GUIFARRO- No. 20-72976 ACEITUNO, Agency No. A206-475-687 Petitioner,

v. MEMORANDUM*

MERRICK B. GARLAND, Attorney General,

Respondent.

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

Submitted December 19, 2024** San Francisco, California

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

Damaris Gabriela Guifarro-Aceituno, a native and citizen of Honduras

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

denying her motions to reopen removal proceedings and to reconsider the BIA’s

* 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). prior decision dismissing her appeal of an Immigration Judge’s (“IJ”) denial of a

previous motion to reopen. We have jurisdiction pursuant to 8 U.S.C. § 1252(a)(1),

and we review the BIA’s denial of the motions for abuse of discretion. See Meza-

Vallejos v. Holder, 669 F.3d 920, 923 (9th Cir. 2012); Ayala v. Sessions, 855 F.3d

1012, 1020 (9th Cir. 2017).

1. Guifarro-Aceituno was ordered removed in absentia on May 28, 2014,

after she failed to appear in removal proceedings. She moved to reopen the

proceedings on May 27, 2016, arguing that she did not receive notice of her

hearing. An IJ denied the motion, and the BIA dismissed Guifarro-Aceituno’s

appeal of the denial on January 5, 2017. Guifarro-Aceituno petitioned for this

court’s review of the BIA’s dismissal, and a prior panel denied her petition in part

and dismissed it in part. Guifarro-Aceituno subsequently filed two motions to

“reopen/reconsider” with the BIA. The BIA denied the motions as untimely and

further concluded that Guifarro-Aceituno had not established that her proceedings

should be reopened. Guifarro-Aceituno’s petition for review of the BIA’s denial of

her motions is now before us, and we deny the petition.

2. The BIA properly dismissed Guifarro-Aceituno’s motions as untimely. In

general, a motion to reopen must be filed within 90 days of the date of entry of a

final administrative order of removal. See 8 U.S.C. § 1229a(c)(7)(C)(i). A motion

to reconsider must be filed within 30 days of entry of the final order.

2 Id. § 1229a(c)(6)(B). The order became final when the BIA affirmed the IJ’s in

absentia removal order on January 5, 2017. See id. § 1101(a)(47)(B). Guifarro-

Aceituno filed her motions to “reopen/reconsider” on December 22, 2018 and

April 18, 2019, after the 30-day and 90-day deadlines. Her motions were therefore

untimely.

3. The BIA did not abuse its discretion in concluding that Guifarro-Aceituno

failed to demonstrate that her proceedings should be reopened based on changed

country conditions. In her opening brief, Guifarro-Aceituno indicates that she

seeks to reopen her proceedings based on “changed conditions in Honduras” that

make her “newly eligible” for asylum, withholding of removal, and protection

under the Convention Against Torture (“CAT”). “There is no time limit on the

filing of a motion to reopen if the basis of the motion is to apply for [asylum or

withholding of removal] and is based on changed country conditions arising in the

country of nationality . . . .” 8 U.S.C. § 1229a(c)(7)(C)(ii). However, as the BIA

concluded, Guifarro-Aceituno has not applied for asylum, withholding of removal,

or CAT protection, and her motions do not explain “how [the] new information of

conditions in Honduras” attached to her motions “might bear upon any such

claim.” The BIA therefore did not abuse its discretion in denying her motions to

reopen.

PETITION DENIED.