Munoz-Vega v. Garland

• Court: Court of Appeals for the Tenth Circuit
• Decided: April 19, 2024
• Docket: 23-9571
• Status: Unpublished

Opinion

Appellate Case: 23-9571 Document: 010111034880 Date Filed: 04/19/2024 Page: 1 FILED United States Court of Appeals UNITED STATES COURT OF APPEALS Tenth Circuit

FOR THE TENTH CIRCUIT April 19, 2024 _________________________________ Christopher M. Wolpert Clerk of Court ANSELMO MUNOZ-VEGA,

Petitioner,

v. No. 23-9571 (Petition for Review) MERRICK B. GARLAND, United States Attorney General,

Respondent. _________________________________

ORDER AND JUDGMENT* _________________________________

Before TYMKOVICH, PHILLIPS, and ROSSMAN, Circuit Judges. _________________________________

Anselmo Munoz-Vega, proceeding pro se,1 petitions for review of an order of

the Board of Immigration Appeals (BIA) denying his motion to reopen his

* After examining the briefs and appellate record, this panel has determined unanimously that oral argument would not materially assist in the determination of this appeal. See Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1(G). The case is therefore ordered submitted without oral argument. This order and judgment is not binding precedent, except under the doctrines of law of the case, res judicata, and collateral estoppel. It may be cited, however, for its persuasive value consistent with Fed. R. App. P. 32.1 and 10th Cir. R. 32.1. 1 Because Mr. Munoz-Vega proceeds pro se, we construe his arguments liberally, but we “cannot take on the responsibility of serving as [his] attorney in constructing arguments and searching the record.” Garrett v. Selby Connor Maddux & Janer, 425 F.3d 836, 840 (10th Cir. 2005). Appellate Case: 23-9571 Document: 010111034880 Date Filed: 04/19/2024 Page: 2

immigration proceedings. Exercising jurisdiction under 8 U.S.C. § 1252, we deny

the petition for review.

Mr. Munoz-Vega is a native and citizen of Mexico. He entered the United

States without authorization in 1999. The Department of Homeland Security initiated

removal proceedings against him in 2010. An immigration judge (IJ) found him

removable as charged. With assistance from counsel, Mr. Munoz-Vega moved for

cancellation of removal and voluntary departure. In 2018, the IJ granted voluntary

departure but denied his application for cancellation of removal on the ground

that Mr. Munoz-Vega failed to show any of his qualifying relatives would

suffer exceptional and extremely unusual hardship by his return to Mexico.

Mr. Munoz-Vega appealed to the BIA, which affirmed the IJ’s decision and

dismissed his appeal. Mr. Munoz-Vega filed a petition for review of the BIA

decision, but this court dismissed that petition as untimely filed.

Mr. Munoz-Vega then filed a motion to reopen with the BIA. In support of his

motion, he attached four pieces of evidence: a notice from United States Citizenship

and Immigration Services informing him it would not process the Form I-589 he

submitted due to lack of jurisdiction, see R. vol. 1 at 17–18; his Form I-589

application for asylum dated October 27, 2021, see id. at 20–29; a personal

declaration, see id. at 30–41; and his birth certificate, see id. at 42–43.

The BIA concluded the motion was untimely. See 8 U.S.C.

§ 1229a(c)(7)(C)(i) (setting deadline to file a motion to reopen at 90 days following

the entry of the final order of removal). After considering and rejecting

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Mr. Munoz-Vega’s argument that an exception to the time limit applied,

see id. § 1229a(c)(7)(C)(ii) (allowing for untimely motions to reopen to apply for

asylum if application “is based on changed country conditions arising in the country

of nationality or the country to which removal has been ordered, if such evidence is

material and was not available and would not have been discovered or presented at

the previous proceeding”), the BIA denied the motion, concluding Mr. Munoz-Vega

did not present sufficient evidence to warrant reopening. This petition for review

followed.

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

The BIA abuses its discretion when its decision provides no rational explanation,

inexplicably departs from established policies, is devoid of any reasoning, or contains

only summary or conclusory statements.” Estrada-Cardona v. Garland,

44 F.4th 1275, 1281–82 (10th Cir. 2022) (internal citation and quotation marks

omitted).

Mr. Munoz-Vega’s arguments do not demonstrate an abuse of discretion on the

part of the BIA. He criticizes the BIA’s denial of his original application for

cancellation, but that denial is beyond the scope of the instant petition for review.

See Stone v. INS, 514 U.S. 386, 405–06 (1995) (contemplating separate, timely

filings of petition for review from underlying order of removal and of petition for

review of denial of motion for reconsideration). He refers to Guerrero-Lasprilla v.

Barr, 140 S. Ct. 1062 (2020), as an intervening change in law warranting reopening

of his immigration proceedings. But the Supreme Court decided Guerrero-Lasprilla

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before the BIA decided his initial appeal, much less before it denied his motion to

reopen. And Mr. Munoz-Vega does not point to anything in Guerrero-Lasprilla

suggesting the BIA abused its discretion in denying his motion. He argues the BIA

should have taken administrative notice “of the well reported fact of the large

increase of violence in Mexico and de facto control of there by violent criminal

cartels,” Pet’r Opening Br. at 3, but he did not request that the BIA take judicial

notice of any kind. In any event, the issues he raises—whether and to what extent

there has been a “large increase of violence in Mexico,” whether cartels exercise

“de facto control” of the country, and whether and how this would affect his untimely

motion to reopen—are not appropriate for judicial notice to the extent they are

reasonably subject to dispute. See 8 C.F.R. § 1003.1(d)(3)(iv)(A) (allowing the BIA

to take administrative notice only of “facts that are not reasonably subject to

dispute”).

We therefore deny the petition for review.

Entered for the Court

Gregory A. Phillips Circuit Judge