Sanchez-Lopez v. Garland

• Court: Court of Appeals for the Ninth Circuit
• Decided: May 30, 2023
• Docket: 21-120
• Status: Unpublished

Opinion

NOT FOR PUBLICATION FILED UNITED STATES COURT OF APPEALS MAY 30 2023 MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS FOR THE NINTH CIRCUIT

OMAR SANCHEZ-LOPEZ, No. 21-120 Agency No. Petitioner, A079-748-626 v. MEMORANDUM* MERRICK B. GARLAND, Attorney General,

Respondent.

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

Submitted May 16, 2023 **

Before: BENNETT, MILLER, and VANDYKE, Circuit Judges.

Omar Sanchez-Lopez, a native and citizen of Mexico, petitions for review

of the Board of Immigration Appeals’ (“BIA”) order dismissing his appeal from

an immigration judge’s decision denying his motion to reopen removal

proceedings. We have jurisdiction under 8 U.S.C. § 1252. We review for abuse

of discretion the denial of a motion to reopen. Najmabadi v. Holder, 597 F.3d

* 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). 983, 986 (9th Cir. 2010). We deny the petition for review.

Because Sanchez-Lopez does not challenge the agency’s determination

that his motion to reopen was untimely, we do not address it. See Lopez-

Vasquez v. Holder, 706 F.3d 1072, 1079-80 (9th Cir. 2013).

Our jurisdiction to review the agency’s discretionary decision not to

reopen proceedings sua sponte is limited to contentions of legal or constitutional

error. See Lona v. Barr, 958 F.3d 1225, 1227 (9th Cir. 2020). Sanchez-Lopez’s

claims that the agency violated due process by not informing him of apparent

eligibility for voluntary departure, not advising him of the right to seek counsel,

and not providing him with a reasoned explanation by the BIA, fail because he

has not shown error or prejudice. See Padilla-Martinez v. Holder, 770 F.3d

825, 830 (9th Cir. 2014) (“To prevail on a due-process claim, a petitioner must

demonstrate both a violation of rights and prejudice.” (internal citations

omitted)); Zamorano v. Garland, 2 F.4th 1213, 1223 (9th Cir. 2021) (“[F]ailure

to advise about apparent eligibility . . . can be excused when the petitioner’s

eligibility for relief is not plausible.” (internal quotation marks and citation

omitted)); Falcon Carriche v. Ashcroft, 350 F.3d 845, 848 (9th Cir. 2003)

(BIA’s summary affirmance procedure does not violate due process).

The temporary stay of removal remains in place until the mandate

issues.

PETITION FOR REVIEW DENIED.

2 21-120