Marco Montoya-Hernandez v. Merrick Garland

• Court: Court of Appeals for the Ninth Circuit
• Decided: May 26, 2022
• Docket: 16-70800
• Status: Unpublished

Opinion

NOT FOR PUBLICATION FILED UNITED STATES COURT OF APPEALS MAY 26 2022 MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS FOR THE NINTH CIRCUIT

MARCO MONTOYA-HERNANDEZ, No. 16-70800

Petitioner, Agency No. A095-697-941

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.

Marco Montoya-Hernandez, a native and citizen of Peru, petitions pro se 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 BIA’s denial of a motion to reopen. Najmabadi

* 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). v. Holder, 597 F.3d 983, 986 (9th Cir. 2010). We review de novo questions of law.

Bhattarai v. Lynch, 835 F.3d 1037, 1042 (9th Cir. 2016). We deny in part and

dismiss in part the petition for review.

The BIA did not abuse its discretion in denying Montoya-Hernandez’s

motion to reopen as untimely, where it was filed more than nine months after the

order of removal became final, see 8 C.F.R. § 1003.2(c)(2), and where Montoya-

Hernandez did not establish changed country conditions in Peru that are material to

his claim for relief, see id. § 1003.2(c)(3)(ii) (material evidence of changed

circumstances is required to qualify for an exception to the time and numerical

limitations for motions to reopen); Najmabadi, 597 F.3d at 987-90 (evidence must

be “qualitatively different” to warrant reopening).

To the extent Montoya-Hernandez contends he is eligible for cancellation of

removal, we lack jurisdiction to consider this contention because it was not raised

in his motion to reopen to the BIA. See Barron v. Ashcroft, 358 F.3d 674, 677-78

(9th Cir. 2004) (court lacks jurisdiction to review claims not presented to the

agency). Additionally, to the extent Montoya-Hernandez challenges the BIA’s

underlying dismissal order, we lack jurisdiction to review that decision because it

was issued on April 2, 2015, and Montoya-Hernandez did not file this petition for

2 16-70800 review until March 24, 2016.1 See Singh v. Lynch, 835 F.3d 880, 882 (9th Cir.

2016) (“A petition for review must be filed not later than 30 days after the date of

the final order of removal. . . . This deadline is mandatory and jurisdictional.”

(internal citations and quotation marks omitted)).

PETITION FOR REVIEW DENIED in part; DISMISSED in part.

1 This court denied Montoya-Hernandez’s timely petition for review of the BIA’s underlying dismissal order on December 14, 2015. See Montoya-Hernandez v. Lynch, 624 F. App’x 566 (9th Cir. 2015).

3 16-70800