Marlen Santos-Cabrera v. Jefferson Sessions

• Court: Court of Appeals for the Ninth Circuit
• Decided: March 20, 2018
• Docket: 16-71117
• Status: Unpublished

Opinion

NOT FOR PUBLICATION FILED UNITED STATES COURT OF APPEALS MAR 20 2018 MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS FOR THE NINTH CIRCUIT

MARLEN SUYAPA SANTOS-CABRERA, No. 16-71117 AKA Maria Gonzalez-Pacheco, Agency No. A098-589-470 Petitioner,

v. MEMORANDUM*

JEFFERSON B. SESSIONS III, Attorney General,

Respondent.

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

Submitted March 13, 2018**

Before: LEAVY, M. SMITH, and CHRISTEN, Circuit Judges.

Marlen Suyapa Santos-Cabrera, a native and citizen of Honduras, petitions

for review of the Board of Immigration Appeals’ order dismissing her appeal from

an immigration judge’s order denying her motion to reopen removal proceedings

conducted in absentia. Our jurisdiction is governed by 8 U.S.C. § 1252. We review

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

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 agency did not abuse its discretion in denying Santos-Cabrera’s motion

to reopen as untimely, where she filed the motion nearly nine years after her in

absentia removal order, and has not demonstrated that any exception to the filing

deadlines are applicable. See 8 U.S.C. § 1229a(b)(5)(C)(i), (c)(7)(C)(i).

We reject Santos-Cabrera’s contentions that the agency failed to sufficiently

consider evidence and arguments, properly consider all factors, or insufficiently

explained its decision. See Najmabadi v. Holder, 597 F.3d 983, 990 (9th Cir. 2010)

(agency need not write an exegesis on every contention); Fernandez v. Gonzales,

439 F.3d 592, 603 (9th Cir. 2006) (petitioner did not overcome the presumption

that the BIA did review the record).

Santos-Cabrera’s contention that the Illegal Immigration Reform and

Immigrant Responsibility Act of 1996 is unconstitutional lacks merit. See Jimenez-

Angeles v. Ashcroft, 291 F.3d 594, 602-03 (9th Cir. 2002) (limitations by country

of origin on the availability of special rule cancellation of removal do not violate

equal protection).

To the extent Santos-Cabrera challenges the agency’s discretionary decision

not to reopen proceedings sua sponte, we lack jurisdiction to review this

2 16-71117 determination absent a claim of legal or constitutional error. See Bonilla v. Lynch,

840 F.3d 575, 588 (9th Cir. 2016) (“[T]his court has jurisdiction to review Board

decisions denying sua sponte reopening for the limited purpose of reviewing the

reasoning behind the decisions for legal or constitutional error.”).

Because the untimeliness determination is dispositive, we do not reach

Santos-Cabrera’s remaining contentions regarding eligibility for relief. See

Simeonov v. Ashcroft, 371 F.3d 532, 538 (9th Cir. 2004).

PETITION FOR REVIEW DENIED in part; DISMISSED in part.

3 16-71117