Hector Oliva-Alfaro v. Merrick Garland

• Court: Court of Appeals for the Ninth Circuit
• Decided: May 20, 2022
• Docket: 15-71758
• Status: Unpublished

Opinion

NOT FOR PUBLICATION FILED UNITED STATES COURT OF APPEALS MAY 20 2022 MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS FOR THE NINTH CIRCUIT

HECTOR OLIVA-ALFARO, No. 15-71758

Petitioner, Agency No. A029-129-176

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

Respondent.

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

Submitted May 17, 2022**

Before: CANBY, TASHIMA, and NGUYEN, Circuit Judges.

Hector Oliva-Alfaro, a native and citizen of Guatemala, petitions for review

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

proceedings and declining to exercise its sua sponte authority to reopen.

Our jurisdiction is governed by 8 U.S.C. § 1252. See Garcia v. Lynch, 798

* 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). F.3d 876, 880 (9th Cir. 2015). We review for abuse of discretion the denial of a

motion to reopen. Cano-Merida v. INS, 311 F.3d 960, 964 (9th Cir. 2002). We

dismiss the petition for review in part and deny it in part.

We lack jurisdiction to review the BIA’s discretionary decision not to

exercise its authority to reopen proceedings sua sponte. Bonilla v. Lynch, 840 F.3d

575, 588 (9th Cir. 2016).

We previously denied Oliva-Alfaro’s petition for review of the agency’s

determination that he was not eligible for asylum or withholding of removal due to

his criminal history and had not established eligibility for protection under the

Convention Against Torture. Oliva-Alfaro v. Holder, 600 F. App’x 518 (9th Cir.

2015) (unpublished). We now conclude that the BIA did not abuse its discretion

by denying his motion to reopen. Oliva-Alfaro’s submission, which includes

information concerning the deaths of several relatives and other materials, does not

constitute new evidence that would likely have changed the outcome of his case.

See Shin v. Mukasey, 547 F.3d 1019, 1025 (9th Cir. 2008) (applicants who seek to

“reopen proceedings to pursue relief bear a ‘heavy burden’ of proving that, if

proceedings were reopened, the new evidence would likely change the result in the

case” (quoting Matter of Coelho, 20 I. & N. Dec. 464, 473 (BIA 1992))).

PETITION FOR REVIEW DENIED in part; DISMISSED in part.

2 15-71758