JAVIER HERRERA-CASTANEDA V. MERRICK GARLAND, No. 17-72755 (9th Cir. 2022)
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NOT FOR PUBLICATION UNITED STATES COURT OF APPEALS FILED DEC 12 2022 MOLLY C. DWYER, CLERK FOR THE NINTH CIRCUIT JAVIER HERRERA-CASTANEDA, Petitioner, No. U.S. COURT OF APPEALS 17-72755 Agency No. A095-723-057 v. MEMORANDUM* MERRICK B. GARLAND, Attorney General, Respondent. On Petition for Review of an Order of the Board of Immigration Appeals Submitted December 8, 2022** Pasadena, California Before: R. NELSON, BADE, and FORREST, Circuit Judges. Petitioner Javier Herrera-Castaneda, a native and citizen of Mexico, petitions for review of the Board of Immigration Appeals’ (BIA) denial of his second motion to reopen proceedings. We have jurisdiction under 8 U.S.C. § 1252. Although this appeal is taken from Herrera-Castaneda’s second motion to * 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). reopen, the entirety of Herrera-Castaneda’s briefing addresses the BIA’s denial of his first motion to reopen. The issues surrounding the denial of that motion to reopen have already been the subject of a petition for review before this court, which was denied. See Herrera-Castaneda v. Sessions, 678 F. App’x 514, 514–15 (9th Cir. 2017). To the extent Herrera-Castaneda intended to appeal the BIA’s denial of his first motion to reopen, that request is both untimely under 8 U.S.C. § 1252(b)(1) and foreclosed by our prior decision in 2017. As to the second motion to reopen, Herrera-Castaneda’s petition is deficient on its face. The BIA denied Herrera-Castaneda’s second motion to reopen because he failed to present sufficient evidence to show that the harm he might experience upon returning to Mexico would be “on account of” his inclusion in a particular social group, he failed to demonstrate that it is more likely than not that he would be tortured in Mexico by or with the acquiescence of the government, and there were no exceptional circumstances warranting sua sponte reopening. Because Herrera-Castaneda’s briefing exclusively discusses the bases for the BIA’s decision on his first motion to reopen rather than his second, Herrera-Castaneda fails to argue, much less demonstrate, that the BIA’s denial of his second motion to reopen was “arbitrary, irrational, or contrary to law.” See, e.g., Cui v. Garland, 13 F.4th 991, 995–96 (9th Cir. 2021) (“The BIA only abuses its discretion [in denying a motion to reopen] when the decision is arbitrary, irrational or contrary to law.” 2 (internal quotation marks and citation omitted)). Accordingly, we deny the petition for review. PETITION FOR REVIEW DENIED. 3
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