Moraga Alvarez v. Bondi

• Court: Court of Appeals for the Ninth Circuit
• Decided: February 12, 2025
• Docket: 23-2413
• Status: Unpublished

Opinion

NOT FOR PUBLICATION FILED UNITED STATES COURT OF APPEALS FEB 12 2025 MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS FOR THE NINTH CIRCUIT

MELVIN ESTUARDO MORAGA No. 23-2413 ALVAREZ, Agency No. A074-807-615 Petitioner,

v. MEMORANDUM**

PAMELA BONDI,* Attorney General,

Respondent.

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

Submitted February 10, 2025*** Pasadena, California

Before: PAEZ, IKUTA, and R. NELSON, Circuit Judges.

* Pamela Bondi is substituted as Attorney General pursuant to Fed. R. App. P. 43 (c). ** 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). Petitioner Melvin Estuardo Moraga Alvarez, a native and citizen of

Guatemala, petitions for review of the Board of Immigration Appeals’ (BIA) third

denial of his motion to reopen, denial of his motion to administratively close his

deportation proceedings, and refusal to sua sponte reopen due to exceptional

circumstances. We have jurisdiction under 8 U.S.C. § 1252(a)(1), and we deny the

petition.

1. We review the BIA’s denial of a motion to reopen for abuse of discretion.

Santos-Zacaria v. Garland, 598 U.S. 411, 425 (2023). Our “review is limited to

those grounds explicitly relied upon by the [BIA,]” including portions of the

Immigration Judge’s decision that the BIA “expressly adopts.” Diaz-Reynoso v.

Barr, 968 F.3d 1070, 1075–76 (9th Cir. 2020) (quotation omitted).

It has been over twenty years, and now three motions to reopen, since the BIA

entered a final order of removal against Petitioner. And we still do not find that

Petitioner has presented “material” evidence that “was not available and could not

have been discovered or presented at the previous hearing” to justify reopening his

deportation proceedings. 8 C.F.R. § 1003.2(c)(3)(ii).

Before the Immigration Judge, Petitioner conceded that he, like his mother,

came to the United States for a “better future,” was never “a member of any

organizations in Guatemala[,]” was never “persecuted in Guatemala[,]” and never

had “any problems in Guatemala other than economic [problems.]” But now,

2 23-2413 Petitioner seeks to reopen his deportation proceedings to reassert asylum and

withholding claims because Petitioner’s “fear is now based on the increased level of

gangs and violence in Guatemala and fear for his safety if he were to return to

Guatemala.” And he seeks to reopen his Convention Against Torture (CAT)

protection claim because he also “does not believe the Guatemalan government can

protect him.” As evidence, Petitioner points to the United States State Department’s

Human Rights Report for Guatemala, this time for the year 2021 (2021 Report), and

a personal affidavit.1

That is insufficient to assert an asylum or withholding claim. Petitioner’s

asylum and withholding claims must sound in persecution with a nexus to a

protected ground. See Delgado-Ortiz v. Holder, 600 F.3d 1148, 1151 (9th Cir. 2010)

(per curiam). Fear of generalized crime is insufficient. Id. Petitioner’s opening

brief never specifies a protected ground upon which he fears persecution, and issues

“not specifically and distinctly argued and raised in a party’s opening brief are

waived.” Arpin v. Santa Clara Valley Transp. Agency, 261 F.3d 912, 919 (9th

Cir. 2001).

Petitioner’s CAT protection claim is equally deficient. The BIA did not abuse

its discretion when it found that Petitioner did not “sufficiently demonstrate[] that

1 The BIA properly disregarded the affidavit. Petitioner has not lived in Guatemala for nearly three decades, and the BIA disregarded the affidavit as not based on personal knowledge.

3 23-2413 the Guatemalan authorities are unable or unwilling to protect him from the potential

threat of harm.” “Petitioner[’s] generalized evidence of violence and crime in

[Guatemala] is not particular to [him] and is insufficient to” grant him CAT

protection. Delgado-Ortiz, 600 F.3d at 1152.

Because Petitioner fails to establish a prima facie case for asylum,

withholding, or CAT protection, the BIA did not abuse its discretion in denying his

motion to reopen. See, e.g., Toufighi v. Mukasey, 538 F.3d 988, 996 (9th Cir. 2008).

2. The BIA did not abuse its discretion when it refused to sua sponte reopen

proceedings under 8 C.F.R. § 1003.2(a). This authority is discretionary and not

subject to judicial review, Lona v. Barr, 958 F.3d 1225, 1236–37 (9th Cir. 2022),

except for constitutional or legal error, see, e.g., Cui v. Garland, 13 F.4th 991, 1001

(9th Cir. 2021).

Petitioner argues that the BIA should have reopened his proceedings sua

sponte to grant him administrative closure under Matter of Avetisyan, 25 I. & N.

Dec. 688 (B.I.A. 2012). Specifically, he argues that “the Board committed clear

abuse of discretion when it declined to reopen Petitioner’s case because it clearly

rejected an established legal framework (Avetisyan mentioned above).” But the

Board correctly stated the law governing administrative closure. Accordingly, it did

not reject an established legal framework, and we have no jurisdiction to address the

BIA’s discretionary evaluation of the applicable factors.

4 23-2413 PETITION DENIED.2

2 Petitioner’s motion to stay removal, Dkt. 3, is denied.

5 23-2413