Jorge Arce-Martinez v. William Barr

• Court: Court of Appeals for the Ninth Circuit
• Decided: June 12, 2020
• Docket: 17-71912
• Status: Unpublished

Opinion

FILED NOT FOR PUBLICATION JUN 12 2020 UNITED STATES COURT OF APPEALS MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS

FOR THE NINTH CIRCUIT

JORGE ARCE-MARTINEZ, AKA No. 17-71912 George Martinez Arce, Agency No. A036-036-823 Petitioner,

v. MEMORANDUM*

WILLIAM P. BARR, Attorney General,

Respondent.

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

Submitted June 1, 2020** Pasadena, California

Before: FERNANDEZ and LEE, Circuit Judges, and ORRICK,*** District Judge.

Jorge Arce-Martinez, a native and citizen of Mexico, petitions for review of

a decision of the Board of Immigration Appeals (“BIA”) denying his motion to

* 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). *** The Honorable William Horsley Orrick, United States District Judge for the Northern District of California, sitting by designation. reopen as untimely and declining to sua sponte reopen the deportation proceedings.

We deny the petition.

Although Arce did not file his motion within ninety days of the BIA’s final

administrative decision,1 he asserts that his motion was timely pursuant to

equitable tolling because he filed within ninety days after a change of the law in

Bonilla v. Lynch, 840 F.3d 575, 592 (9th Cir. 2016).2 We disagree.

Arce argues that two BIA decisions prevented him from filing his motion to

reopen before Bonilla changed the law. See Matter of Armendarez-Mendez, 24 I.

& N. Dec. 646, 660 (BIA 2008), overruled by Toor v. Lynch, 789 F.3d 1055, 1057,

1064 (9th Cir. 2015); Matter of Lok, 18 I. & N. Dec. 101, 105–06 (BIA 1981).

However, the first, Armendarez-Mendez, was overruled in 2015, over ninety days

before Arce filed his motion to reopen. See Toor, 789 F.3d at 1057, 1064. And,

rather than overruling Lok, Bonilla cited it with approval. See Bonilla, 840 F.3d at

589, 591. Because Bonilla did not change the law applicable to Arce’s motion to

reopen, the BIA did not abuse its discretion in concluding that the filing deadline

1 See 8 C.F.R. § 1003.2(c)(2). 2 See Avagyan v. Holder, 646 F.3d 672, 679 (9th Cir. 2011); cf. Luna v. Holder, 659 F.3d 753, 760–61 (9th Cir. 2011).

2 was not equitably tolled during the period from the decision in Toor to the decision

in Bonilla.

We have limited jurisdiction to review the BIA’s denial of sua sponte

reopening; we can determine only whether the BIA’s decision rested on a legal or

constitutional error. See Menendez v. Whitaker, 908 F.3d 467, 471 (9th Cir. 2018);

Bonilla, 840 F.3d at 588; Singh v. Holder, 771 F.3d 647, 650 (9th Cir. 2014).

Arce’s sole argument is that the BIA made a legal error in deciding that Bonilla

was not a relevant change in law. As discussed above, the BIA’s decision was

correct.

Petition DENIED.