Nathalia Mata-Garcilazo v. Merrick Garland

• Court: Court of Appeals for the Ninth Circuit
• Decided: April 20, 2021
• Docket: 19-70028
• Status: Unpublished

Opinion

NOT FOR PUBLICATION FILED UNITED STATES COURT OF APPEALS APR 20 2021 MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS FOR THE NINTH CIRCUIT

NATHALIA MATA-GARCILAZO, No. 19-70028

Petitioner, Agency No. A099-477-447

v. MEMORANDUM*

MERRICK B. GARLAND, Attorney General,

Respondent.

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

Submitted March 17, 2021** San Francisco, California

Before: MURGUIA and CHRISTEN, Circuit Judges, and LEFKOW,*** District Judge.

Nathalia Mata-Garcilazo, a native and citizen of Nicaragua and a citizen of

Honduras, petitions for review of the order of the Board of Immigration Appeals

* 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). *** The Honorable Joan H. Lefkow, United States District Judge for the Northern District of Illinois, sitting by designation. (“BIA”) denying her untimely motion to reopen removal proceedings. Mata-

Garcilazo sought exceptions to the time limit based on ineffective assistance of

counsel and changed country conditions. She also requested the BIA to exercise its

authority to reopen her proceedings sua sponte based on exceptional circumstances

and to consider her claim for cancellation of removal based on a change in law. We

have jurisdiction under 8 U.S.C. § 1252(a). We deny the petition for review.

Because the parties are familiar with the facts of this case, we need not

recount them here. We review for abuse of discretion the BIA’s denial of a motion

to reopen. Najmabadi v. Holder, 597 F.3d 983, 986 (9th Cir. 2010). We review the

BIA’s findings of fact for substantial evidence. Id.; Lin v. Ashcroft, 377 F.3d 1014,

1024 (9th Cir. 2004).

The BIA did not abuse its discretion in denying Mata-Garcilazo’s motion to

reopen as untimely. See 8 C.F.R. § 1003.2(c)(2). Mata-Garcilazo did not establish

changed country conditions in Nicaragua or Honduras that are material to any of

her claims for relief. See 8 C.F.R. § 1003.2(c)(3)(ii) (requiring material evidence of

changed circumstances to qualify for 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). The BIA found that the country

conditions evidence “reflect[ed] political protests have taken place in Nicaragua

for many years, including at the time of [Mata-Garcilazo’s] removal proceedings in

2 2011,” and that the recent political protests became less violent after the

government agreed to engage in dialogue. The BIA also found “[t]he evidence

show[ed] that gender violence in Honduras has been a concern for many years,

particularly since 2009, and the government continues to take steps to control gang

violence.” Accordingly, the BIA’s determinations were not “arbitrary, irrational, or

contrary to law.” See Lin v. Holder, 588 F.3d 981, 989 (9th Cir. 2009) (upholding

the BIA’s determination that the petitioner failed to establish a material change in

country conditions where the decision was not “arbitrary, irrational, or contrary to

law”) (citation omitted).

The BIA’s finding that Mata-Garcilazo did not establish due diligence in

discovering the ineffective assistance of her counsel is supported by substantial

evidence. See Avagyan v. Holder, 646 F.3d 672, 679 (9th Cir. 2011) (“First, we

determine if (and when) a reasonable person in petitioner's position would suspect

the specific fraud or error underlying her motion to reopen.”). Significantly, the

BIA found that record documents reflecting that her appeal had been filed pro se

were dated years before Mata-Garcilazo filed her motion to reopen, and she could

not specify when she conferred with legal counsel before conferring with current

counsel in 2018.

Because the BIA did not abuse its discretion in denying the motion to

reopen, we need not reach Mata-Garcilazo’s arguments that she has shown prima

3 facie eligibility for asylum, withholding of removal, or relief under CAT. See

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

not required to decide issues unnecessary to the results they reach).

Nor did the BIA err in denying her request to reopen her removal

proceedings based on Pereira v. Sessions, –– U.S. ––, 138 S. Ct. 2105 (2018). The

BIA addressed Pereira by assuming that Mata-Garcilazo was temporally eligible

for cancellation of removal. In finding that she failed to prima facie establish that

her citizen children would suffer exceptional and extremely unusual hardship upon

her removal, the BIA did not rely on an incorrect application of the prima facie

standard. See Montero-Martinez v. Ashcroft, 277 F.3d 1137, 1144 (9th Cir. 2002)

(holding that judicial review of discretionary acts by the BIA is limited to “the

purely legal and hence non-discretionary” aspects of the BIA's action).

Likewise, we lack jurisdiction to review the BIA’s denial of sua sponte

reopening because the BIA did not rely on an incorrect legal premise in its

reasoning. Bonilla v. Lynch, 840 F.3d 575, 588 (9th Cir. 2016) (“[T]his court has

jurisdiction to review [BIA] decisions denying sua sponte reopening for the limited

purpose of reviewing the reasoning behind the decisions for legal or constitutional

error.”); see Menendez v. Whitaker, 908 F.3d 467, 471 (9th Cir. 2018). Instead, the

BIA concluded that Mata-Garcilazo failed to establish “exceptional circumstances

to warrant granting of her untimely motion,” which is precisely the precise of

4 discretionary decision we lack jurisdiction to review. See Bonilla, 840 F.3d at 585–

86.

PETITION DENIED.