Jose Rosas Arenas v. Merrick Garland

• Court: Court of Appeals for the Ninth Circuit
• Decided: February 24, 2023
• Docket: 18-71670
• Status: Unpublished

Opinion

NOT FOR PUBLICATION FILED UNITED STATES COURT OF APPEALS FEB 24 2023 MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS FOR THE NINTH CIRCUIT

JOSE ANTONIO ROSAS ARENAS; No. 18-71670 TERESA BRAVO DE ROSAS, Agency Nos. A095-448-677 Petitioners, A095-448-678

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

Respondent.

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

Submitted February 21, 2023**

Before: OWENS, LEE, and BUMATAY, Circuit Judges.

Petitioners Jose Antonio Rosas Arenas and Teresa Bravo De Rosas, natives

and citizens of Mexico, seek review of the Board of Immigration Appeals’ (“BIA”)

denial of their motion for reopening and reconsideration. We have jurisdiction under

* 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). 8 U.S.C § 1252. Reviewing for abuse of discretion, Singh v. I.N.S., 213 F.3d 1050,

1052 (9th Cir. 2000), we deny the petition.

1. The BIA did not abuse its discretion by ruling that Petitioners failed to

allege changed country conditions sufficient to warrant reopening. To prevail on a

motion to reopen based on changed country conditions, a petitioner must “(1)

produce evidence that conditions have changed in the country of removal; (2)

demonstrate that the evidence is material; (3) show that the evidence was not

available and would not have been discovered or presented at the previous hearings;

and (4) demonstrate that the new evidence, when considered together with the

evidence presented at the original hearing, would establish prima facie eligibility for

the relief sought.” Agonafer v. Sessions, 859 F.3d 1198, 1204 (9th Cir. 2017)

(simplified). As the BIA noted, Petitioners offered only vague, unsworn statements

in their motion regarding crime in Mexico. They do not allege that conditions have

worsened since their initial proceeding, and thus cannot qualify for reopening based

on changed country conditions.

2. We lack jurisdiction to review the BIA’s decision not to reopen

proceedings sua sponte because of exceptional circumstances. Petitioners’ main

contentions in their motion for reopening and their opening brief on appeal relate to

the hardships their children will face if they are removed to Mexico. The BIA found

that the hardships alleged were insufficient to justify sua sponte reopening. This

2 discretionary decision not to reopen is not reviewable on appeal. See Greenwood v.

Garland, 36 F.4th 1232, 1237 (9th Cir. 2022) (“[T]his court lacks jurisdiction to

review discretionary decisions by the BIA not to reopen a case sua sponte.”).

3. Petitioners’ constitutional argument is meritless. On appeal, Petitioners

argue that the BIA’s denial of their motion for reopening violates the Equal

Protection Clause, U.S. CONST. amend. XIV, because Congress has provided for

more lenient standards for cancellation of removal for Nicaraguan aliens under the

Nicaraguan Adjustment and Central American Relief Act (“NACARA”). We have

repeatedly rejected equal protection challenges to NACARA, upholding Congress’s

decision to “afford more favorable treatment to certain aliens” fleeing from

particularly oppressive regimes under rational basis review. Jimenez-Angeles v.

Ashcroft, 291 F.3d 594, 603 (9th Cir. 2002).

DENIED.