Rochac-Garcia v. Garland

• Court: Court of Appeals for the Ninth Circuit
• Decided: October 19, 2023
• Docket: 22-1943
• Status: Unpublished

Opinion

NOT FOR PUBLICATION FILED UNITED STATES COURT OF APPEALS OCT 19 2023 MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS FOR THE NINTH CIRCUIT

FRANKLIN A ROCHAC-GARCIA, No. 22-1943 Agency No. Petitioner, A201-429-072 v. MEMORANDUM* MERRICK B. GARLAND, Attorney General,

Respondent.

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

Submitted October 10, 2023**

Before: S.R. THOMAS, McKEOWN, and HURWITZ, Circuit Judges.

Franklin A Rochac-Garcia, a native and citizen of El Salvador, petitions for

review of the Board of Immigration Appeals’ (“BIA”) order denying his motion to

reopen removal proceedings. We have jurisdiction under 8 U.S.C. § 1252. We

* 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). review for abuse of discretion the denial of a motion to reopen. Najmabadi v.

Holder, 597 F.3d 983, 986 (9th Cir. 2010). We deny the petition for review.

The BIA did not abuse its discretion in denying the untimely motion to

reopen where Rochac-Garcia failed to establish prima facie eligibility for relief.

See Ramirez-Munoz v. Lynch, 816 F.3d 1226, 1228 (9th Cir. 2016) (BIA may deny

a motion to reopen for failure to establish prima facie eligibility for the relief

sought); see also Bhasin v. Gonzales, 423 F.3d 977, 984 (9th Cir. 2005) (“An

applicant must demonstrate that the new evidence, when considered together with

the evidence presented at the original hearing, would establish prima facie

eligibility for the relief sought.”).

Rochac-Garcia’s contentions regarding a new proposed particular social

group and political opinion are not properly before the court because he failed to

raise them before the BIA. See 8 U.S.C. § 1252(d)(1) (exhaustion of

administrative remedies required); see also Santos-Zacaria v. Garland, 598 U.S.

411, 417-19 (2023) (section 1252(d)(1) is a non-jurisdictional claim-processing

rule).

We reject Rochac-Garcia’s conclusory contention that the BIA erred in

deeming his request for a stay of removal moot.

The temporary stay of removal remains in place until the mandate

2 22-1943 issues. The motion for a stay of removal is otherwise denied.

PETITION FOR REVIEW DENIED.

3 22-1943