Tellez-Muro v. Garland

• Court: Court of Appeals for the Ninth Circuit
• Decided: April 2, 2024
• Docket: 23-213
• Status: Unpublished

Opinion

NOT FOR PUBLICATION FILED UNITED STATES COURT OF APPEALS APR 2 2024 MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS FOR THE NINTH CIRCUIT

RAMIRO TELLEZ-MURO, No. 23-213 Agency No. Petitioner, A200-670-908 v. MEMORANDUM* MERRICK B. GARLAND, Attorney General,

Respondent.

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

Submitted March 26, 2024** Seattle, Washington

Before: WARDLAW and MILLER, Circuit Judges, and CORLEY, District Judge.***

Ramiro Tellez-Muro, a native and citizen of Mexico, petitions for review of

a Board of Immigration Appeals (“BIA”) decision denying his motion to reopen.

* 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 Jacqueline Scott Corley, United States District Judge for the Northern District of California, sitting by designation. We have jurisdiction under 8 U.S.C. § 1252, and we deny the petition for review.

Because Tellez-Muro challenges the BIA’s denial “of sua sponte reconsideration

or reopening,” we have jurisdiction to review only for “legal or constitutional

error.” Lona v. Barr, 958 F.3d 1225, 1227 (9th Cir. 2020) (quoting Bonilla v.

Lynch, 840 F.3d 575, 588 (9th Cir. 2016)).

1. The BIA did not commit legal or constitutional error in determining

that Tellez-Muro’s motion to reopen was untimely. The agency accurately

concluded that the motion, which was filed more than three years after proceedings

concluded, failed to comply with the applicable 90-day deadline. See 8 U.S.C. §

1229a(c)(7)(C)(i); 8 C.F.R. § 1003.2(c)(2). The deadline plainly applies, for

Tellez-Muro did not invoke any statutory exception to the 90-day deadline or

invoke equitable tolling. And while Tellez-Muro argues that a removal order

based upon a vacated conviction is “illegal ab initio,” this argument is inapposite

because the agency’s removal order was never premised on the vacated conviction.

2. The BIA did not commit legal or constitutional error in determining

that Tellez-Muro failed to establish prima facie eligibility for cancellation of

removal. The agency set forth the proper standard for eligibility, noting that a

conviction for an offense described in 8 U.S.C. § 1182(a)(2), § 1227(a)(2), or §

1227(a)(3) disqualifies Tellez-Muro from relief. See 8 U.S.C. § 1229b(b)(1)(C).

Moreover, the agency properly noted that in a motion to reopen, Tellez-Muro need

2 23-213 only show a “reasonable likelihood” of success on the merits. See Tadevosyan v.

Holder, 743 F.3d 1250, 1254–55 (9th Cir. 2014). The BIA’s decision does not

suggest that the agency ignored the possibility that a marijuana conviction for

simple possession of less than 30 grams would be subject to an exception, see 8

U.S.C. 1227(a)(2)(B)(1), or eligible for a waiver, see 8 U.S.C. § 1182(h). Rather,

the agency concluded that the presence of Tellez-Muro’s 2001 marijuana

possession conviction on his criminal record and his corresponding failure to

“present[] sufficient evidence to establish that his 2001 conviction… does not

render him ineligible” undermined his prima facie case. This decision evinces no

legal error.

Moreover, contrary to Tellez-Muro’s suggestion that the agency ignored the

evidence he submitted, the BIA “considered the respondent’s evidence” but found

it insufficient. And while Tellez-Muro argues that the BIA engaged in improper

factfinding, the BIA’s decision did not weigh evidence or evaluate credibility. See

Tadevosyan, 743 F.3d at 1256.

PETITION FOR REVIEW DENIED.

3 23-213