Opinion
16-70800
05-26-2022
MARCO MONTOYA-HERNANDEZ, Petitioner, v. MERRICK B. GARLAND, Attorney General, Respondent.
NOT FOR PUBLICATION
Submitted May 17, 2022[**]
On Petition for Review of an Order of the Board of Immigration Appeals, Agency No. A095-697-941
Before: CANBY, TASHIMA, and NGUYEN, Circuit Judges.
MEMORANDUM [*]
Marco Montoya-Hernandez, a native and citizen of Peru, petitions pro se for review of the Board of Immigration Appeals' ("BIA") order denying his motion to reopen removal proceedings. Our jurisdiction is governed by 8 U.S.C. § 1252. We review for abuse of discretion the BIA's denial of a motion to reopen. Najmabadi v. Holder, 597 F.3d 983, 986 (9th Cir. 2010). We review de novo questions of law. Bhattarai v. Lynch, 835 F.3d 1037, 1042 (9th Cir. 2016). We deny in part and dismiss in part the petition for review.
The BIA did not abuse its discretion in denying Montoya-Hernandez's motion to reopen as untimely, where it was filed more than nine months after the order of removal became final, see 8 C.F.R. § 1003.2(c)(2), and where Montoya-Hernandez did not establish changed country conditions in Peru that are material to his claim for relief, see id. § 1003.2(c)(3)(ii) (material evidence of changed circumstances is required to qualify for an exception to the time and numerical limitations for motions to reopen); Najmabadi, 597 F.3d at 987-90 (evidence must be "qualitatively different" to warrant reopening).
To the extent Montoya-Hernandez contends he is eligible for cancellation of removal, we lack jurisdiction to consider this contention because it was not raised in his motion to reopen to the BIA. See Barron v. Ashcroft, 358 F.3d 674, 677-78 (9th Cir. 2004) (court lacks jurisdiction to review claims not presented to the agency). Additionally, to the extent Montoya-Hernandez challenges the BIA's underlying dismissal order, we lack jurisdiction to review that decision because it was issued on April 2, 2015, and Montoya-Hernandez did not file this petition for review until March 24, 2016. See Singh v. Lynch, 835 F.3d 880, 882 (9th Cir. 2016) ("A petition for review must be filed not later than 30 days after the date of the final order of removal. . . . This deadline is mandatory and jurisdictional." (internal citations and quotation marks omitted)).
This court denied Montoya-Hernandez's timely petition for review of the BIA's underlying dismissal order on December 14, 2015. See Montoya-Hernandez v. Lynch, 624 Fed.Appx. 566 (9th Cir. 2015).
PETITION FOR REVIEW DENIED in part; DISMISSED in part.
[*] 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).