MENDOZA VALDEZ v. BARR (2019)

MEMORANDUM **

Catarino Mendoza-Valdez, a native and citizen of Mexico, petitions for review of the Board of Immigration Appeals’ decision affirming the dismissal of his motion to reopen. We DENY the petition.

Mendoza-Valdez concedes that he did not file his motion to reopen within the 90-day time limit. See 8 C.F.R. § 1003.23(b) (motions to reopen must be filed within 90 days of entry of a final order of removal, deportation, or exclusion, or on or before September 30, 1996, whichever is later). Mendoza-Valdez seeks to excuse this untimely filing because of his vacated conviction, citing to Wiedersperg v. INS, 896 F.2d 1179 (9th Cir. 1990), and Cardoso-Tlaseca v. Gonzales, 460 F.3d 1102 (9th Cir. 2006).

Neither Wiedersperg nor Cardoso-Tlaseca, however, addresses procedural time limitations. Rather, they discuss the “departure bar,” a jurisdictional bar that prohibits an alien from making a motion to reopen or reconsider after leaving the United States. See Wiedersperg, 896 F.2d at 1181–82; Cardoso-Tlaseca, 460 F.3d at 1106–07. Indeed, Cardoso-Tlaseca dealt with a timely motion to reopen, 460 F.3d at 1104–05, and procedural time limitations were not in effect at the time Wiedersperg was decided. See Executive Office for Immigration Review; Motions and Appeals in Immigration Proceedings, 61 Fed. Reg. 18,900 (April 29, 1996) (final rule establishing the 90-day time limit for motions to reopen). Accordingly, Wiedersperg and Cardoso-Tlaseca do not excuse Mendoza-Valdez’s failure to file his motion to reopen within the prescribed time limit.

PETITION FOR REVIEW DENIED.