Otabek Khamraev v. Merrick Garland ( 2021 )

NOT FOR PUBLICATION FILED
UNITED STATES COURT OF APPEALS MAR 23 2021
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
OTABEK KHAMRAEV, No. 18-73055
Petitioner, Agency No. A099-968-190
v.
MEMORANDUM*
MERRICK B. GARLAND, Attorney
General,
Respondent.
On Petition for Review of an Order of the
Board of Immigration Appeals
Submitted March 16, 2021**
Before: GRABER, R. NELSON, and HUNSAKER, Circuit Judges.
Otabek Khamraev, a native and citizen of Uzbekistan, petitions 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 motion to reopen. Mohammed v. Gonzales,
*
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).
400 F.3d 785, 791 (9th Cir. 2005). We deny in part and dismiss in part the petition
for review.
The BIA did not abuse its discretion in denying Khamraev’s motion to
reopen as untimely, where it was filed more than three years after the order of
removal became final, and where Khamraev failed to establish materially changed
country conditions in Uzbekistan to qualify for the regulatory exception to the time
limitation for filing a motion to reopen. See 8 C.F.R. § 1003.2(c)(2), (3)(ii); see
also Najmabadi v. Holder, 597 F.3d 983, 987-90 (9th Cir. 2010) (evidence must be
“qualitatively different” to warrant reopening). In light of this disposition, we do
not address Khamraev’s contentions regarding exceptional circumstances or prima
facie eligibility for relief. See Simeonov v. Ashcroft, 371 F.3d 532, 538 (9th Cir.
2004) (the courts are not required to make findings on issues the decision of which
is unnecessary to the results).
The BIA also did not abuse its discretion in denying Khamraev’s motion to
reopen as untimely where he failed to demonstrate that he met the requirements for
equitable tolling. See Avagyan v. Holder, 646 F.3d 672, 677-79 (9th Cir. 2011)
(discussing the circumstances in which a movant may be entitled to equitable
tolling).
We lack jurisdiction to review the BIA’s denial of sua sponte reopening,
where Khamraev has not raised a legal or constitutional error. See Bonilla v.
2 18-73055
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 decisions for legal or constitutional error.”).
PETITION FOR REVIEW DENIED in part; DISMISSED in part.
3 18-73055