CATARINO MENDOZA-VALDEZ V. WILLIAM BARR, No. 16-73800 (9th Cir. 2019)
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NOT FOR PUBLICATION UNITED STATES COURT OF APPEALS FILED NOV 27 2019 MOLLY C. DWYER, CLERK FOR THE NINTH CIRCUIT CATARINO MENDOZA-VALDEZ, AKA Jose Castillo, No. U.S. COURT OF APPEALS 16-73800 Agency No. A071-954-652 Petitioner, MEMORANDUM* v. WILLIAM P. BARR, Attorney General, Respondent. On Petition for Review of an Order of the Board of Immigration Appeals Argued and Submitted November 13, 2019 San Francisco, California Before: BENNETT and LEE, Circuit Judges, and PIERSOL,** District Judge. Catarino Mendoza-Valdez, a native and citizen of Mexico, petitions for review of the Board of Immigration Appeals’ decision affirming the dismissal of his motion to reopen. We DENY the petition. Mendoza-Valdez concedes that he did not file his motion to reopen within the * This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3. ** The Honorable Lawrence L. Piersol, United States District Judge for the District of South Dakota, sitting by designation. 90-day time limit. See 8 C.F.R. § 1003.23(b) (motions to reopen must be filed within 90 days of entry of a final order of removal, deportation, or exclusion, or on or before September 30, 1996, whichever is later). Mendoza-Valdez seeks to excuse this untimely filing because of his vacated conviction, citing to Wiedersperg v. INS, 896 F.2d 1179 (9th Cir. 1990), and Cardoso-Tlaseca v. Gonzales, 460 F.3d 1102 (9th Cir. 2006). Neither Wiedersperg nor Cardoso-Tlaseca, however, addresses procedural time limitations. Rather, they discuss the “departure bar,” a jurisdictional bar that prohibits an alien from making a motion to reopen or reconsider after leaving the United States. See Wiedersperg, 896 F.2d at 1181–82; Cardoso-Tlaseca, 460 F.3d at 1106–07. Indeed, Cardoso-Tlaseca dealt with a timely motion to reopen, 460 F.3d at 1104–05, and procedural time limitations were not in effect at the time Wiedersperg was decided. See Executive Office for Immigration Review; Motions and Appeals in Immigration Proceedings, 61 Fed. Reg. 18,900 (April 29, 1996) (final rule establishing the 90-day time limit for motions to reopen). Accordingly, Wiedersperg and Cardoso-Tlaseca do not excuse Mendoza-Valdez’s failure to file his motion to reopen within the prescribed time limit. PETITION FOR REVIEW DENIED. 2
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