Juan Botello-Salcedo v. William Barr

• Court: Court of Appeals for the Ninth Circuit
• Decided: October 21, 2019
• Docket: 18-70672
• Status: Unpublished

Opinion

NOT FOR PUBLICATION FILED UNITED STATES COURT OF APPEALS OCT 21 2019 MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS FOR THE NINTH CIRCUIT

JUAN BOTELLO-SALCEDO, No. 18-70672

Petitioner, Agency No. A095-786-099

v. MEMORANDUM* WILLIAM P. BARR, Attorney General,

Respondent.

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

Submitted October 15, 2019**

Before: FARRIS, LEAVY, and RAWLINSON, Circuit Judges.

Juan Botello-Salcedo, a native and citizen of Mexico, petitions for review of

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

removal proceedings. Our jurisdiction is governed by 8 U.S.C. § 1252. We review

for abuse of discretion the denial of a motion to reopen, and review de novo

* 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). questions of law. Mohammed v. Gonzales, 400 F.3d 785, 791-92 (9th Cir. 2005).

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

The BIA did not abuse its discretion in denying Botello-Salcedo’s motion to

reopen as untimely, where he filed the motion beyond the applicable filing

deadline, and did not show the motion was subject to any exceptions to the

deadline. See 8 C.F.R. § 1003.2(c)(2), (3) (subject to exceptions, a motion to

reopen must be filed no later than 90 days after the date on which the final

administrative decision was rendered); see also Matter of M-S-, 22 I. & N. Dec.

349, 356-57 (BIA 1998) (a motion to reopen seeking only to apply for relief

unavailable to the movant at the time of the hearing is still subject to the regulatory

requirements governing motions to reopen).

We do not consider Botello-Salcedo’s unexhausted contentions that the BIA

was not permitted to impose the 90-day deadline under the circumstances

presented, or that he showed due diligence for equitable tolling of the filing

deadline. See Tijani v. Holder, 628 F.3d 1071, 1080 (9th Cir. 2010) (the court

lacks jurisdiction to consider legal claims not presented in an alien’s administrative

proceedings before the agency).

Our jurisdiction to review BIA decisions denying sua sponte reopening is

limited to reviewing the reasoning behind the decisions for legal or constitutional

2 18-70672 error. See Bonilla v. Lynch, 840 F.3d 575, 588 (9th Cir. 2016). Botello-Salcedo

has not established that the BIA’s denial of sua sponte reopening involved any

“incorrect legal premise.” See id.

We deny as unnecessary Botello-Salcedo’s request for judicial notice.

PETITION FOR REVIEWED DENIED in part; DISMISSED in part.

3 18-70672