JOSE MORAN-MIRANDA V. MERRICK GARLAND, No. 17-70025 (9th Cir. 2022)
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NOT FOR PUBLICATION UNITED STATES COURT OF APPEALS FILED NOV 18 2022 MOLLY C. DWYER, CLERK FOR THE NINTH CIRCUIT JOSE MAURICIO MORAN-MIRANDA, AKA Joses Moran Miranda, No. U.S. COURT OF APPEALS 17-70025 Agency No. A029-184-024 Petitioner, MEMORANDUM* v. MERRICK B. GARLAND, Attorney General, Respondent. On Petition for Review of an Order of the Board of Immigration Appeals Submitted November 15, 2022** Before: CANBY, CALLAHAN, and BADE, Circuit Judges. Jose Mauricio Moran-Miranda, a native and citizen of El Salvador, petitions for review of the Board of Immigration Appeals’ (“BIA”) order dismissing his appeal from an immigration judge’s (“IJ”) denial of his motion to reopen removal proceedings. We have jurisdiction under 8 U.S.C. § 1252. We review for abuse of * 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). discretion the denial of a motion to reopen. Najmabadi v. Holder, 597 F.3d 983, 986 (9th Cir. 2010). We review de novo questions of law. Mohammed v. Gonzales, 400 F.3d 785, 791-92 (9th Cir. 2005). We deny in part and dismiss in part the petition for review.1 The agency did not abuse its discretion in denying Moran-Miranda’s motion to reopen as untimely, where it was filed over two years after the final removal order, see 8 U.S.C. § 1229a(c)(7)(C)(i) (motion to reopen must be filed within ninety days of the final removal order), and Moran-Miranda has not established changed country conditions in El Salvador to qualify for an exception to the filing deadline, see 8 U.S.C. § 1229a(c)(7)(C)(ii); Toufighi v. Mukasey, 538 F.3d 988, 996-97 (9th Cir. 2008) (movant must produce material evidence that conditions in country of nationality had changed); see also Najmabadi, 597 F.3d at 987-90 (evidence must be “qualitatively different” to warrant reopening). We reject as unsupported by the record Moran-Miranda’s contentions that the agency failed to correctly consider the evidence or otherwise erred in analyzing his claim. As to sua sponte reopening, the BIA did not err in determining that the IJ lacked jurisdiction to consider Moran-Miranda’s request for a waiver of inadmissibility. See Man v. Barr, 940 F.3d 1354, 1357 (9th Cir. 2019) 1 We grant the motion for leave to file an out-of-time amici curiae brief (Docket Entry No. 26). 2 17-70025 (“Immigration Judges lack the authority to consider a request by a petitioner for U nonimmigrant status for a waiver under section 212(d)(3)(A)(ii) of the [Immigration and Nationality] Act.” (citing Matter of Khan, 26 I & N Dec. 797, 803 (BIA 2016) (internal quotation marks omitted)). We otherwise lack jurisdiction to review the agency’s discretionary decision not to reopen proceedings sua sponte. See Bonilla v. Lynch, 840 F.3d 575, 588 (9th Cir. 2016) (“[T]his court has jurisdiction to review Board decisions denying sua sponte reopening for the limited purpose of reviewing the reasoning behind the decision for legal or constitutional error.”). PETITION FOR REVIEW DENIED in part; DISMISSED in part. 3 17-70025
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