eLaws | Code of Federal Regulations | United States Code |
 All Courts
 Federal Courts
 US Court of Appeals Cases
 Court of Appeals for the Ninth Circuit
 2016-12

Manuel Chavez-Rivera v. Loretta E. Lynch , 666 F. App'x 706 ( 2016 )


Menu:
 
  •                                                                             FILED
NOT FOR PUBLICATION                             DEC 23 2016
MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS                        U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
MANUEL ANTONIO DE JESUS                          No.   14-72910
CHAVEZ-RIVERA,
Agency No. A098-896-326
Petitioner,
v.                                              MEMORANDUM*
LORETTA E. LYNCH, Attorney General,
Respondent.
On Petition for Review of an Order of the
Board of Immigration Appeals
Submitted December 14, 2016**
Before:      WALLACE, LEAVY, and FISHER, Circuit Judges.
Manuel Antonio de Jesus Chavez-Rivera, a native and citizen of El
Salvador, petitions pro se for review of the Board of Immigration Appeals’
(“BIA”) order denying his motion to reopen removal proceedings. Our jurisdiction
is governed by
    8 U.S.C. § 1252
    . We review for abuse of discretion the denial of a
*
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).
motion to reopen, and review de novo constitutional claims. Mohammed v.
Gonzales,
    400 F.3d 785
    , 791-92 (9th Cir. 2005). We deny in part and dismiss in
part the petition for review.
The BIA did not abuse its discretion in denying Chavez-Rivera’s second
motion to reopen as untimely and number-barred, where Chavez-Rivera has not
established that any statutory or regulatory exception to the filing limitations
applies. See 8 U.S.C. § 1229a(c)(7)(C);
    8 C.F.R. § 1003.2
    (c)(3) (setting forth
exceptions to the filing limitations for motions to reopen).
Chavez-Rivera’s contentions that the BIA failed to consider relevant factors
or evidence, applied an incorrect legal standard, or otherwise failed to sufficiently
articulate its reasons for denying his motion are unsupported by the record. See
Najmabadi v. Holder,
    597 F.3d 983
    , 990 (9th Cir. 2010).
Accordingly, Chavez-Rivera’s due process claims fail. See Lata v. INS,
    204 F.3d 1241
    , 1246 (9th Cir. 2000) (requiring error and prejudice to prevail on due
process claim).
To the extent Chavez-Rivera now contends he is eligible for cancellation of
removal, we lack jurisdiction to consider this unexhausted contention. See Tijani
v. Holder,
    628 F.3d 1071
    , 1080 (9th Cir. 2010) (“We lack jurisdiction to review
2                                       14-72910
legal claims not presented in an alien’s administrative proceedings before the
BIA.”).
To the extent Chavez-Rivera challenges the BIA’s decision not to invoke its
sua sponte authority to reopen, we lack jurisdiction over that contention. See
Mejia-Hernandez v. Holder,
    633 F.3d 818
    , 823-24 (9th Cir. 2011); cf. Bonilla v.
Lynch,
    840 F.3d 575
    , 588 (9th Cir. 2016).
Finally, we lack jurisdiction to consider Chavez-Rivera’s request for
prosecutorial discretion. See Vilchiz-Soto v. Holder,
    688 F.3d 642
    , 644 (9th Cir.
2012) (order).
PETITION FOR REVIEW DENIED in part; DISMISSED in part.
3                                      14-72910