Jesus Sanchez Oliva v. Merrick Garland ( 2022 )


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  •                            NOT FOR PUBLICATION                           FILED
    FEB 3 2022
    UNITED STATES COURT OF APPEALS
    MOLLY C. DWYER, CLERK
    U.S. COURT OF APPEALS
    FOR THE NINTH CIRCUIT
    JESUS A. SANCHEZ OLIVA,                          No.   20-72714
    Petitioner,                         Agency No. A209-944-237
    v.
    MERRICK B. GARLAND, Attorney                     MEMORANDUM*
    General,
    Respondent.
    On Petition for Review of an Order of the
    Board of Immigration Appeals
    Argued and Submitted December 9, 2021
    Pasadena, California
    *
    This disposition is not appropriate for publication and is not
    precedent except as provided by Ninth Circuit Rule 36-3.
    Before: W. FLETCHER and RAWLINSON, Circuit Judges, and LIBURDI,**
    District Judge.
    Jesus Sanchez Oliva, a native and citizen of Honduras, petitions for review of
    a Board of Immigration Appeals (BIA) order denying his untimely motion to reopen
    removal proceedings. We have jurisdiction under 
    8 U.S.C. § 1252
    . We deny the
    petition for review in part and dismiss in part for lack of jurisdiction.
    We review the BIA’s denial of motions to reopen for abuse of discretion,
    Cano-Merida v. INS, 
    311 F.3d 960
    , 964 (9th Cir. 2002), and reverse only if the BIA’s
    decision was arbitrary, irrational, or contrary to law. Valeriano v. Gonzales, 
    474 F.3d 669
    , 672 (9th Cir. 2007). We review the BIA’s factual findings for substantial
    evidence. Barrios v. Holder, 
    581 F.3d 849
    , 854 (9th Cir. 2009).
    A motion to reopen must ordinarily be filed within ninety days after the final
    administrative order of removal is entered. 8 U.S.C. § 1229a(c)(7)(C)(i). The ninety-
    day deadline does not apply, however, if the motion to reopen is based on changed
    country conditions. Id. § 1229a(c)(7)(C)(ii); see also Go v. Holder, 
    744 F.3d 604
    ,
    607–09 (9th Cir. 2014) (changed country conditions exception also applies to
    motions to reopen to assert claims under the Convention Against Torture). A
    **
    The Honorable Michael T. Liburdi, United States District Judge for
    the District of Arizona, sitting by designation.
    2
    petitioner seeking to reopen based on changed country conditions must show that
    “‘circumstances have changed sufficiently that a petitioner who previously did not
    have a legitimate claim’ now does.” Agonafer v. Sessions, 
    859 F.3d 1198
    , 1204 (9th
    Cir. 2017) (quoting Malty v. Ashcroft, 
    381 F.3d 942
    , 945 (9th Cir. 2004)).
    The BIA did not abuse its discretion in denying Sanchez’s untimely motion to
    reopen. In the initial removal proceeding, Sanchez argued only that he was
    persecuted in Honduras based on his refusal to cooperate with gangs. He did not
    argue that he was persecuted because he is gay. Therefore, even had Sanchez showed
    that conditions in Honduras had materially worsened for gay men, he did not show
    that circumstances had changed relevant to the proceeding he sought to reopen. Even
    had his status as a gay man been at issue in the initial proceeding, the evidence
    Sanchez submitted did not illustrate that discrimination against gay men in Honduras
    had materially worsened since he initially sought relief from removal. See Agonafer,
    859 F.3d at 1204 (“[N]ewly submitted evidence must be ‘qualitatively different’
    from the evidence presented at the previous hearing.” (quoting Malty, 
    381 F.3d at 945
    )). The evidence instead showed that gay men have long been persecuted in
    Honduras and that conditions have remained largely unchanged since 2018.
    3
    Sanchez likewise failed to show that conditions in Honduras have materially
    changed for individuals resisting gang activity. His submitted evidence either
    predated his initial removal proceeding, see 8 U.S.C. § 1229a(c)(7)(C)(ii), or merely
    recounted the evidence presented at his initial proceeding, see Agonafer, 859 F.3d at
    1204. Moreover, Sanchez did not establish that the alleged change in conditions was
    material to his eligibility for relief. See Ramirez-Munoz v. Lynch, 
    816 F.3d 1226
    ,
    1228 (9th Cir. 2016) (the BIA may deny a motion to reopen for failure to establish
    prima facie eligibility for the relief sought); Barrios, 
    581 F.3d at
    854–55 (young men
    resisting gang violence is not a particular social group), abrogated in part on other
    grounds by Henriquez-Rivas v. Holder, 
    707 F.3d 1081
     (9th Cir. 2013) (en banc).
    Thus, the BIA did not abuse its discretion in denying his untimely motion to reopen.
    We lack jurisdiction to review the BIA’s decision not to exercise its sua sponte
    authority to reopen proceedings, as the decision was purely discretionary and not
    based on legal or constitutional error. Lona v. Barr, 
    958 F.3d 1225
    , 1232–33 (9th
    Cir. 2020).
    PETITION FOR REVIEW DENIED in part and DISMISSED in part.
    4