GARCIA CASTRO v. BARR (2019)

United States Court of Appeals, Ninth Circuit.

Elliot Nilsson GARCIA-CASTRO, Petitioner, v. William P. BARR, Attorney General, Respondent.

No. 14-72968

Decided: October 22, 2019

Before: FARRIS, LEAVY, and RAWLINSON, Circuit Judges.

Bernadette Willeke Connolly, Attorney, Law Offices of Bernadette W. Connolly, San Jose, CA, for Petitioner Brooke Maurer, Trial Attorney, DOJ - U.S. Department of Justice, Civil Division/Office of Immigration Litigation, Washington, DC, Chief Counsel ICE, Office of the Chief Counsel, Department of Homeland Security, San Francisco, CA, for Respondent

MEMORANDUM **

Elliot Nilsson Garcia-Castro, a native and citizen of El Salvador, 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 BIA’s 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-Castro’s untimely and number-barred motion to reopen because Garcia-Castro failed to establish prima facie eligibility for asylum, withholding of removal, or relief under the Convention Against Torture to qualify for an exception to the time and number limitations for motions to reopen. See 8 C.F.R. § 1003.2(c)(3)(ii); Najmabadi, 597 F.3d at 986 (the BIA may deny a motion to reopen for failure to establish prima facie eligibility for the relief sought).

We lack jurisdiction to consider Garcia-Castro’s contentions regarding humanitarian asylum because he did not exhaust them before the BIA. See Barron v. Ashcroft, 358 F.3d 674, 677-78 (9th Cir. 2004) (court lacks jurisdiction to review claims not presented to the agency).

PETITION FOR REVIEW DENIED in part; DISMISSED in part.

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