Maria De La O-Hernandez v. William Barr

• Court: Court of Appeals for the Ninth Circuit
• Decided: August 19, 2020
• Docket: 15-70008
• Status: Unpublished

Opinion

NOT FOR PUBLICATION FILED UNITED STATES COURT OF APPEALS AUG 19 2020 MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS FOR THE NINTH CIRCUIT

MARIA LUCIA DE LA O-HERNANDEZ, No. 15-70008

Petitioner, Agency No. A201-231-840

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

Respondent.

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

Submitted August 17, 2020**

Before: TROTT, SILVERMAN, and N.R. SMITH, Circuit Judges.

Maria Lucia De La O-Hernandez, a native and citizen of El Salvador,

petitions pro se for review of the Board of Immigration Appeals’ (“BIA”) order

denying her motion to reconsider its order dismissing her appeal from an

immigration judge’s (“IJ”) decision denying her application for relief.

* 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). Our jurisdiction is governed by 8 U.S.C. § 1252. We review for abuse of

discretion the denial of a motion to reconsider or reopen. Cano-Merida v. INS, 311

F.3d 960, 964 (9th Cir. 2002). We dismiss in part and deny in part the petition for

review.

We lack jurisdiction to review the BIA’s underlying dismissal order because

it was issued on July 3, 2014, and De La O-Hernandez did not file this petition for

review until January 2, 2015. 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.”)

(citation and internal quotation marks omitted); Stone v. INS, 514 U.S. 386, 405

(1995) (“[A] deportation order is final, and reviewable, when issued. Its finality is

not affected by the subsequent filing of a motion to reconsider.”).

The BIA did not abuse its discretion by denying De La O-Hernandez’s

motion to reconsider because, as the agency noted, she did not identify any errors

of fact or law in the BIA’s decision. 8 C.F.R. § 1003.2(b)(1); Ma v. Ashcroft, 361

F.3d 553, 558 (9th Cir. 2004) (“A petitioner’s motion to reconsider must identify a

legal or factual error in the BIA’s prior decision.”); see also Zetino v. Holder, 622

F.3d 1007, 1016 (9th Cir. 2010) (an applicant’s “desire to be free from harassment

by criminals motivated by theft or random violence by gang members bears no

2 15-70008 nexus to a protected ground”); Aden v. Holder, 589 F.3d 1040, 1047 (9th Cir.

2009) (stating the requirements for establishing eligibility for CAT protection).

To the extent that the motion to reconsider could be construed as a motion to

reopen, the denial of the motion was not an abuse of discretion because, as the

agency also noted, De La O-Hernandez did not introduce new evidence that could

not have been obtained earlier and that would likely have changed the outcome of

her case. 8 C.F.R. § 1003.2(c)(1); Shin v. Mukasey, 547 F.3d 1019, 1025 (9th Cir.

2008) (“Aliens who seek to remand or reopen proceedings to pursue relief bear a

‘heavy burden’ of proving that, if proceedings were reopened, the new evidence

would likely change the result in the case.”) (quoting Matter of Coelho, 20 I. & N.

Dec. 464, 473 (BIA 1992)).

PETITION FOR REVIEW DISMISSED in part; DENIED in part.

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