Roberto Tepozteco-Rios v. Merrick Garland

• Court: Court of Appeals for the Ninth Circuit
• Decided: August 25, 2021
• Docket: 20-71043
• Status: Unpublished

Opinion

NOT FOR PUBLICATION FILED UNITED STATES COURT OF APPEALS AUG 25 2021 MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS FOR THE NINTH CIRCUIT

ROBERTO GERMAN TEPOZTECO- No. 20-71043 RIOS, Agency No. A205-712-052 Petitioner,

v. MEMORANDUM*

MERRICK B. GARLAND, Attorney General,

Respondent.

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

Submitted August 17, 2021**

Before: SILVERMAN, CHRISTEN, and LEE, Circuit Judges.

Roberto German Tepozteco-Rios, a native and citizen of Mexico, petitions

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

motion to reopen and remand. Our jurisdiction is governed by 8 U.S.C. § 1252.

We review the BIA’s denial of a motion to reopen and remand for abuse of

* 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). discretion. Movsisian v. Ashcroft, 395 F.3d 1095, 1098 (9th Cir. 2005). We deny

in part and dismiss in part the petition for review.

In his opening brief, Tepozteco-Rios does not challenge the BIA’s denial of

his motion to reopen and remand based on his non-immigrant U visa petition. See

Lopez-Vasquez v. Holder, 706 F.3d 1072, 1079-80 (9th Cir. 2013) (issues not

specifically raised and argued in a party’s opening brief are waived).

The BIA did not abuse its discretion in denying Tepozteco-Rios’s untimely

and number barred motion to reopen and remand based on changed country

conditions where he failed to establish prima facie eligibility for relief. See

8 C.F.R. § 1003.2(c)(2), (3)(ii); Ramirez-Munoz v. Lynch, 816 F.3d 1226, 1228

(9th Cir. 2016) (the BIA may deny a motion to reopen for failure to establish prima

facie eligibility for the relief sought); see also INS v. Elias-Zacarias, 502 U.S. 478,

483 (1992) (an applicant “must provide some evidence of [motive], direct or

circumstantial”); Garcia-Milian v. Holder, 755 F.3d 1026, 1033-35 (9th Cir. 2014)

(concluding that petitioner did not establish the necessary “state action” for CAT

relief).

We lack jurisdiction to review the agency’s determination not to reopen

proceedings sua sponte. See Mejia-Hernandez v. Holder, 633 F.3d 818, 823-824

(9th Cir. 2011); cf. 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

2 20-71043 the limited purpose of reviewing the reasoning behind the decisions for legal or

constitutional error.”).

We reject as unsupported by the record Tepozteco-Rios’s contention that the

agency ignored evidence or otherwise erred in its analysis of his motion.

The temporary stay of removal remains in place until issuance of the

mandate.

PETITION FOR REVIEW DENIED in part; DISMISSED in part.

3 20-71043