Jose Munoz v. William Barr ( 2020 )

FILED
NOT FOR PUBLICATION
JUN 11 2020
UNITED STATES COURT OF APPEALS MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
JOSE JESUS MUNOZ, AKA Jose Munoz, No. 17-70713
Petitioner, Agency No. A076-215-529
v.
MEMORANDUM*
WILLIAM P. BARR, Attorney General,
Respondent.
On Petition for Review of an Order of the
Board of Immigration Appeals
Submitted June 9, 2020**
San Francisco, California
Before: THOMAS, Chief Judge, and SCHROEDER and BRESS, Circuit Judges.
Jose Jesus Munoz petitions for review of a decision by the Board of
Immigration Appeals (“BIA”) affirming a decision by an immigration judge (“IJ”)
denying his motion to reopen removal proceedings. We have jurisdiction under 8
*
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).
U.S.C. § 1252 and we deny the petition. Because the parties are familiar with the
history of the case, we need not recount it here.
Where “the BIA adopt[s] the IJ’s decision and also add[s] its own reasons,
we review both decisions.” Vasquez-Hernandez v. Holder, 590 F.3d 1053, 1054
(9th Cir. 2010). We review the denial of a motion to reopen for abuse of discretion
and questions of law de novo. Id.The BIA did not abuse its discretion in affirming the IJ’s denial of Munoz’s
motion to reopen based on the vacatur of his conviction. Munoz’s motion to
reopen was untimely because Munoz filed the petition more than 90 days after the
BIA’s final decision, see 8 U.S.C. § 1229a(c)(7)(C)(i); 8 C.F.R. § 1003.23(b)(1),
and the vacatur of Munoz’s conviction did not bring his motion within any
statutory or regulatory exception to the time limit, see 8 U.S.C. § 1229a(c)(7)(C); 8
C.F.R. § 1003.23(b)(4)(i).
The BIA did not abuse its discretion in affirming the IJ’s denial of Munoz’s
motion to reopen to apply for asylum or withholding of removal based on changed
country conditions. Munoz challenges this portion of the BIA decision solely on
the grounds that “the Motion need only present relevant new circumstances, not
conclusive proof that the Motion would be granted.” There is no indication in the
BIA decision, however, that the BIA or IJ applied an improperly high standard of
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proof to Munoz’s motion to reopen. On the contrary, the BIA and IJ properly
determined that Munoz had not demonstrated that he is prima facie eligible for
relief. See Agonafer v. Sessions, 859 F.3d 1198, 1204 (9th Cir. 2017) (“To prevail
on a motion to reopen on the basis of changed country conditions, a petitioner must
. . . demonstrate that the new evidence, when considered together with the evidence
presented at the original hearing, would establish prima facie eligibility for the
relief sought.”).
Having denied Munoz’s motion to reopen as untimely, the IJ declined to
consider Munoz’s I-485 application for adjustment of status as not properly before
the court. The BIA found no error in this decision. Munoz now argues that the
BIA erred with respect to the merits of his application for adjustment of status.
This argument fails, however, because the BIA did not base its decision on a
consideration of the merits of his application.
PETITION DENIED.
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