Opinion
18-71816
10-26-2022
GREGORIO VASQUEZ TELLO; ROGELIA NICOLASA VASQUEZ- LOPEZ; SELVIN LIONEL VASQUEZ- LOPEZ; ELVIA LOPEZ VASQUEZ, Petitioners, v. MERRICK B. GARLAND, Attorney General, Respondent.
NOT FOR PUBLICATION
Submitted October 20, 2022 Portland, Oregon
The panel unanimously concludes this case is suitable for decision without oral argument. See Fed. R. App. P. 34(a)(2).
On Petition for Review of an Order of the Board of Immigration Appeals Agency Nos. A075-647-604, A075-647-605, A075-647-606, A075-651-208
Before: PAEZ and BADE, Circuit Judges, and LEFKOW, District Judge.
MEMORANDUM [*]
Gregorio Vasquez Tello, Rogelia Vasquez Lopez, Elvia Lopez Vasquez, and Selvin Vasquez Lopez (Petitioners), natives and citizens of Guatemala, petition for review of the denial by the Board of Immigration Appeals (BIA) of their combined motion to reconsider and to reopen as time- and number-barred. We have jurisdiction under 8 U.S.C. § 1252. We review denials of motions to reconsider and motions to reopen for abuse of discretion. See Singh v. Garland, 46 F.4th 1117, 1121 (9th Cir. 2022); B.R. v. Garland, 26 F.4th 827, 835 (9th Cir. 2022). "The BIA abuses its discretion when it acts arbitrarily, irrationally, or contrary to the law, and when it fails to provide a reasoned explanation for its actions." B.R., 26 F.4th at 835 (quotation marks and citation omitted). We deny the petition in part and dismiss the petition in part.
1. The BIA did not abuse its discretion when it denied Petitioners' motion to reconsider as time-barred and their motion to reopen as time- and number-barred. Regarding reconsideration, the BIA correctly concluded that the motion, filed on November 3, 2017, was well beyond the 30-day window allowed for such motions, as the last BIA order was issued on July 9, 2015. See 8 C.F.R. § 1003.2(b)(2).
As to reopening, the BIA correctly determined that this was Petitioners' third motion to reopen removal proceedings and thus exceeded the numerical limit on such motions, and that it was untimely filed beyond 90 days from the April 25, 2007 final order of removal. See 8 U.S.C. §§ 1229a(c)(7)(A), 1229a(c)(7)(C)(i); 8 C.F.R. § 1003.2(c)(2).
The BIA also did not abuse its discretion when it determined that Petitioners' claimed eligibility for adjustment of status or cancellation of removal was not a basis for an exception to time and numerical limits, and they offered no evidence of changed country conditions that might be a basis for an exception. See 8 U.S.C. § 1229a(c)(7)(C)(ii) (time limitations do not apply where there are "changed country conditions arising in the country of nationality or the country to which removal has been ordered, if such evidence is material and was not available and would not have been discovered or presented at the previous proceeding"); 8 C.F.R. § l003.2(c)(3)(ii) (time and numerical limitations do not apply to motions to reopen based on changed circumstances in country of nationality). Accordingly, we deny the petition on these grounds.
2. To the extent that Petitioners challenge the BIA's decision to deny sua sponte reopening, they assert no legal or constitutional error in the BIA's reasoning. The BIA determined that this case did not present "exceptional circumstances" to warrant sua sponte reopening "given the present record and the evidence submitted in support of the motion." We lack jurisdiction over this discretionary decision. See Rubalcaba v. Garland, 998 F.3d 1031, 1035 (9th Cir. 2021) ("When the BIA denies sua sponte reopening or reconsideration as a matter of discretion, we lack jurisdiction to review that decision, although we retain jurisdiction to review the denial of sua sponte reopening for 'legal or constitutional error.'") (quoting Lona v. Barr, 958 F.3d 1225, 1229 (9th Cir. 2020)).
Accordingly, we dismiss the petition on this ground.
PETITION FOR REVIEW DISMISSED IN PART AND DENIED IN PART.
[*] This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3.
The Honorable Joan H. Lefkow, United States District Judge for the Northern District of Illinois, sitting by designation.