Robledo v. Bondi

• Court: Court of Appeals for the Ninth Circuit
• Decided: April 24, 2025
• Docket: 24-479
• Status: Unpublished

Opinion

NOT FOR PUBLICATION FILED UNITED STATES COURT OF APPEALS APR 24 2025 MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS FOR THE NINTH CIRCUIT

HUMBERTO ROBLEDO, No. 24-479 Agency No. Petitioner, A201-906-166 v. MEMORANDUM* PAMELA BONDI, Attorney General,

Respondent.

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

Submitted April 4, 2025** Phoenix, Arizona

Before: HAWKINS, WALLACH, and R. NELSON, Circuit Judges.***

Humberto Robledo seeks review of the decision of the Board of Immigration

Appeals (“BIA”) denying his “Motion to Reopen by Certification.” We have

jurisdiction under 8 U.S.C. § 1252(a) and deny the petition.

* 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 Evan J. Wallach, United States Circuit Judge for the Federal Circuit, sitting by designation. The BIA concluded that Robledo’s motion was, in substance, a motion for

reconsideration and denied the motion as untimely. Contrary to Robledo’s

contentions, the BIA did not err by construing his motion as a motion for

reconsideration. Although Robledo alleged that ineffective assistance of counsel

(“IAC”) lead to the untimely filing of his appeal, Robledo had presented the facts

underlying his IAC claim in an earlier motion to the BIA in which he asked the BIA

to accept his untimely appeal.

Accordingly, Robledo’s instant motion did not rely on previously unavailable

facts or otherwise present circumstances that would warrant treating it as a motion

to reopen rather than a motion to reconsider the BIA’s earlier denial of his request

to accept his untimely appeal. See Singh v. Ashcroft, 367 F.3d 1182, 1185 (9th Cir.

2004) (“[W]here the facts surrounding allegedly ineffective representation by

counsel were unavailable to the petitioner at an earlier stage of the administrative

process, motions before the BIA based on claims of ineffective assistance of counsel

are properly deemed motions to reopen.” (quoting Iturribarria v. INS, 321 F.3d 889,

891 (9th Cir. 2003))). Robledo does not dispute that he filed the instant motion after

the thirty-day deadline for a motion to reconsider had expired. See 8 U.S.C. §

1229a(c)(6)(B).

Robledo also contends that the BIA improperly declined to consider the

materials supporting his motion in violation of his due process rights. Robledo’s

2 24-479 due process claim is effectively a repackaging of his general claim that the BIA erred

by not reopening his case and accepting his untimely appeal by certification.

Because we lack jurisdiction to consider the BIA’s discretionary decision not to

accept an untimely appeal by certification, we will not consider Robledo’s due

process claim. See Idrees v. Barr, 923 F.3d 539, 543 (9th Cir. 2019) (“[A]buse of

discretion challenges to discretionary decisions, even if recast as due process claims,

do not constitute colorable constitutional claims.” (quoting Vargas-Hernandez v.

Gonzales, 497 F.3d 919, 923 (9th Cir. 2007))). We also lack jurisdiction to review

Robledo’s claim that the BIA should have reopened his proceedings sua sponte. See

Perez-Camacho v. Garland, 54 F.4th 597, 606–07 (9th Cir. 2022).

PETITION FOR REVIEW DENIED.

3 24-479