Opinion
23-1721
09-18-2024
LETICIA CONTRERAS VARGAS, Petitioner, v. MERRICK B. GARLAND, Attorney General, Respondent.
NOT FOR PUBLICATION
Submitted September 13, 2024 [**] Pasadena, California
On Petition for Review of an Order of the Board of Immigration Appeals, Agency No. A079-524-687
Before: FRIEDLAND and DESAI, Circuit Judges, and SCHREIER, District Judge [***]
MEMORANDUM [*]
Petitioner, Leticia Contreras Vargas, a citizen of Mexico and noncitizen of the United States, entered the United States sometime in the early 1980s without approval. The Government initiated removal proceedings in 2005. After a series of orders, the Board of Immigration Appeals (BIA) ultimately ordered Contreras Vargas removed from the United States in November 2007. In January 2018, Contreras Vargas's doctor prescribed Contreras Vargas medical marijuana to address her severe pain. In February 2019, over eleven years after her removal order was issued, Contreras Vargas filed a motion to reopen her removal proceedings. The BIA declined to sua sponte reopen her removal proceedings and denied Contreras Vargas's motion to reopen.
We "accept as true the facts stated in [Contreras Vargas's] affidavit in ruling upon [her] motion to reopen unless [we] find[] those facts to be inherently unbelievable." Ghahremani v. Gonzales, 498 F.3d 993, 999 (9th Cir. 2007) (quoting Maroufi v. INS, 772 F.2d 597, 600 (9th Cir. 1985)). There is nothing inherently unbelievable about Contreras Vargas's factual assertions, and thus we assume they are true.
We lack jurisdiction to review the BIA's refusal to sua sponte reopen removal proceedings, unless the BIA premised such refusal on a legal or constitutional error. See Rubalcaba v. Garland, 998 F.3d 1031, 1035 (9th Cir. 2021). Because the BIA explicitly held that Contreras Vargas's situation was not exceptional and did not offer any other legal or constitutional basis for refusing to sua sponte reopen Contreras Vargas's removal proceedings, we lack jurisdiction to review that refusal. See Greenwood v. Garland, 36 F.4th 1232, 1237 (9th Cir. 2022). We dismiss this portion of Contreras Vargas's petition.
We do, however, have jurisdiction to review the BIA's denial of Contreras Vargas's motion to reopen. See 8 U.S.C. § 1252; Fonseca-Fonseca v. Garland, 76 F.4th 1176, 1180 (9th Cir. 2023). "We review the BIA's denial for abuse of discretion . . . and reverse only if the BIA's decision was 'arbitrary, irrational, or contrary to law[.]'" Ayanian v. Garland, 64 F.4th 1074, 1080 (9th Cir. 2023) (quoting Silva v. Garland, 993 F.3d 705, 718 (9th Cir. 2021)).
Noncitizens generally must file motions to reopen within 90 days from the entry of a final order of removal unless the motion "is based on changed country conditions arising in the country of nationality or in 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." Sarkar v. Garland, 39 F.4th 611, 621 (9th Cir. 2022) (quoting 8 U.S.C. § 1229a(c)(7)(C)(ii)); 8 U.S.C. § 1229a(c)(7)(C)(i); 8 C.F.R. § 1003.2(c)(2). This exception requires that "'circumstances have changed sufficiently that a petitioner who previously did not have a legitimate claim' now does." Hernandez-Ortiz v. Garland, 32 F.4th 794, 805 (9th Cir. 2022) (quoting Ramirez-Munoz v. Lynch, 816 F.3d 1226, 1229 (9th Cir. 2016)). For this analysis, we compare the conditions that existed at the time of the petitioner's removal proceedings with the conditions at the time of the petitioner's motion to reopen. See Salim v. Lynch, 831 F.3d 1133, 1137-38 (9th Cir. 2016).
In her petition for review, Contreras Vargas argues the BIA abused its discretion by improperly rejecting Contreras Vargas's two alleged changes in condition. First, Contreras Vargas argues that her 2018 medical marijuana prescription constitutes a change in circumstances because medical marijuana is currently unlawful in Mexico. Second, Contreras Vargas claims that "the crime rates and violence [have] substantially increased in Mexico as well." But the BIA appropriately determined that Contreras Vargas failed to allege that Mexican law regarding medical marijuana has changed between the time of her original removal proceeding in 2005 and her 2019 motion to reopen. Similarly, the BIA appropriately determined that Contreras Vargas has failed to demonstrate that crime rates and violence in Mexico have changed from 2005 to 2019. Thus, the BIA did not abuse its discretion in denying Contreras Vargas's motion to reopen. See 8 U.S.C. § 1229a(c)(7)(C)(ii); see also Rodriguez v. Garland, 990 F.3d 1205, 1210 (9th Cir. 2021) ("[A] petitioner is always required to demonstrate changed country conditions[.]").
Finally, Contreras Vargas argues that the BIA erred in not equitably tolling the 90-day deadline. "A petitioner may receive equitable tolling when some extraordinary circumstance stood in [the petitioner's] way and prevented timely filing, and [s]he acted with due diligence in pursuing h[er] rights." Hernandez-Ortiz, 32 F.4th at 801 (internal quotation marks omitted and second and third brackets added). Arguing equitable tolling applies, Contreras Vargas states that she did not receive her medical marijuana prescription until January 2018, well after the BIA's final removal order in 2007. But the BIA appropriately determined that Contreras Vargas has failed to show she acted diligently in filing her motion. Contreras Vargas's 2018 medical marijuana prescription does not explain why she waited over a year to file her instant motion to reopen. Nor does Contreras Vargas allege that, in the intervening eleven years, she diligently pursued her rights but was prevented from filing by some extraordinary circumstance. See Hernandez-Ortiz, 32 F.4th at 801. Thus, the BIA did not abuse its discretion in refusing to equitably toll the deadline.
For these reasons, we DISMISS in part Contreras Vargas's petition with respect to Contreras Vargas's challenge to the BIA's refusal to sua sponte reopen her removal proceedings, and we DENY the remainder of Contreras Vargas's petition with respect to the BIA's denial of Contreras Vargas's motion to reopen.
Because Contreras Vargas failed to establish changed conditions, we need not address Contreras Vargas's other arguments about whether she can make a prima facie case for asylum and withholding of removal. See Rodriguez, 990 F.3d at 1211.
PETITION 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 panel unanimously concludes this case is suitable for decision without oral argument. See Fed. R. App. P. 34(a)(2).
[***] The Honorable Karen E. Schreier, United States District Judge for the District of South Dakota, sitting by designation.