Hugo Hernandez Ceren v. Merrick Garland ( 2022 )

NOT FOR PUBLICATION FILED
UNITED STATES COURT OF APPEALS APR 18 2022
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
HUGO HERNANDEZ CEREN, AKA Hugo No. 20-72870
Ceren,
Agency No. A073-956-722
Petitioner,
v. MEMORANDUM*
MERRICK B. GARLAND, Attorney
General,
Respondent.
On Petition for Review of an Order of the
Board of Immigration Appeals
Submitted April 13, 2022**
Seattle, Washington
Before: BOGGS,*** HAWKINS, and FORREST, Circuit Judges.
Hugo Hernandez Ceren petitions for review of a Board of Immigration
Appeals (BIA) decision denying his motion to reopen and reconsider based on 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).
***
The Honorable Danny J. Boggs, United States Circuit Judge for the
U.S. Court of Appeals for the Sixth Circuit, sitting by designation.
change in the law. We have jurisdiction under 8 U.S.C. § 1252, and we deny in part
and dismiss in part.
The BIA reasonably denied Hernandez Ceren’s motion to reopen or
reconsider because he filed it well outside the statutory deadlines of ninety days for
a motion to reopen and thirty days for a motion to reconsider. See 8 U.S.C.
§ 1229a(c)(6)(B), (7)(C)(i); Lona v. Barr, 958 F.3d 1225, 1230–32 (9th Cir. 2020).
A favorable change in the case law is not an exception to the filing deadlines for
motions to reopen, see 8 U.S.C. § 1229a(c)(7)(C)(ii)-(iv), though it can be the basis
for equitable tolling, Goulart v. Garland, 18 F.4th 653, 654 (9th Cir. 2021).
However, Hernandez Ceren cannot establish that he is entitled to equitable tolling of
the statutory deadlines, as he waited over two years after the relevant decision to file
his motion, and there is no evidence he diligently pursued relief. See id. at 654-55;
see also Lona, 958 F.3d at 1230‒32.
Hernandez Ceren also argues the BIA erred by rejecting his request for sua
sponte reopening based on the length of time that he waited to file his motion. Even
were we to conclude that Hernandez Ceren did not waive this issue by failing to
“specifically and distinctly” address it in his opening brief, Velasquez-Gaspar v.
Barr, 976 F.3d 1062, 1065 (9th Cir. 2020) (internal quotation marks and citation
omitted), we lack jurisdiction to review this discretionary decision by the BIA
because it did not rest on a legal or constitutional error. See Ekimian v. INS, 303 F.3d
2
1153, 1159 (9th Cir. 2002); Bonilla v. Lynch, 840 F.3d 575, 588 (9th Cir. 2016).
DENIED IN PART; DISMISSED IN PART.1
1
We deny Hernandez Ceren’s motions to stay removal (Docket Nos. 2 and 7)
as moot.
3