MENDOZA VALDEZ v. BARR (2019)

United States Court of Appeals, Ninth Circuit.

Catarino MENDOZA-VALDEZ, aka Jose Castillo, Petitioner, v. William P. BARR, Attorney General, Respondent.

No. 16-73800

Decided: November 27, 2019

Before: BENNETT and LEE, Circuit Judges, and PIERSOL,* District Judge. Frank P. Sprouls, Esquire, Attorney, Law Office of Ricci and Sprouls, San Francisco, CA, for Petitioner Chief Counsel ICE, Office of the Chief Counsel, Department of Homeland Security, San Francisco, CA, Craig Alan Newell, Jr., Esquire, Trial Attorney, DOJ - U.S. Department of Justice, Civil Division/Office of Immigration Litigation, Washington, DC, for Respondent

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.