Jose Rivera-Rodas v. Merrick Garland

• Court: Court of Appeals for the Ninth Circuit
• Decided: March 10, 2022
• Docket: 16-73049
• Status: Unpublished

Opinion

FILED NOT FOR PUBLICATION MAR 10 2022 UNITED STATES COURT OF APPEALS MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS

FOR THE NINTH CIRCUIT

JOSE EDUARDO RIVERA-RODAS, No. 16-73049

Petitioner, Agency No. A074-361-989

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

Respondent.

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

Submitted March 8, 2022** Pasadena, California

Before: IKUTA, LEE, and FORREST, Circuit Judges.

Jose Eduardo Rivera-Rodas, a native and citizen of El Salvador, seeks

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

* 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). motion to reopen. We have jurisdiction under 8 U.S.C. § 1252, and we deny the

petition.

The BIA did not abuse its discretion in determining that Rivera-Rodas failed

to demonstrate that his new evidence (death certificates of persons from El

Salvador) established a prima facie case that he would be persecuted on account of

a protected ground or would more likely than not be tortured by or with the

acquiescence of the Salvadorian government. See Kaur v. Garland, 2 F.4th 823,

833 (9th Cir. 2021) (explaining that such prima facie eligibility is established

“where the evidence reveals a reasonable likelihood that the statutory requirements

for relief have been satisfied” (citation omitted)). Therefore, the BIA did not abuse

its discretion in denying the motion to reopen.

We reject Rivera-Rodas’s argument that the BIA abused its discretion by

failing to apply Matter of Avetisyan, 25 I. & N. Dec. 688 (BIA 2012). The BIA

recognized its sua sponte discretionary authority to reopen and the standard for

evaluating when administrative closure would be appropriate, and made no legal

error in declining to exercise such authority. Therefore, no exception to this

court’s lack of jurisdiction over the BIA’s sua sponte authority to reopen applies.

See Menendez-Gonzalez v. Barr, 929 F.3d 1113, 1116 (9th Cir. 2019).

PETITION DENIED.