GARCIA PEREZ v. BARR (2019)

MEMORANDUM **

Rita Bety Garcia-Perez, a native and citizen of El Salvador, petitions for review of the Board of Immigration Appeals’ (“BIA”) order denying her 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. Najmabadi v. Holder, 597 F.3d 983, 986 (9th Cir. 2010). We deny in part and dismiss in part the petition for review.

The BIA did not abuse its discretion in denying Garcia-Perez’s motion to reopen as untimely where it was filed more than three years after the order of removal became final, see 8 C.F.R. § 1003.2(c)(2), and where Garcia-Perez failed to establish materially changed country conditions in El Salvador to qualify for the regulatory exception to the time limitation for filing a motion to reopen, see 8 C.F.R. § 1003.2(c)(3)(ii); see also Najmabadi, 597 F.3d at 987-90 (evidence must be “qualitatively different” to warrant reopening); Toufighi v. Mukasey, 538 F.3d 988, 996 (9th Cir. 2008) (requiring movant to produce material evidence with motion to reopen that conditions in country of nationality had changed). Garcia-Perez’s argument that the BIA failed to properly consider the evidence is unpersuasive.

We lack jurisdiction to review the BIA’s decision not to reopen proceedings sua sponte because Garcia-Perez has not raised a claim of legal or constitutional error. See Bonilla v. 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.