CASTANEYRA VILLALBA v. BARR (2020)

United States Court of Appeals, Ninth Circuit.

Jose Manuel CASTANEYRA VILLALBA, Petitioner, v. William P. BARR, Attorney General, Respondent.

No. 16-70424

Decided: October 29, 2020

Before: McKEOWN, RAWLINSON, and FRIEDLAND, Circuit Judges. Murray David Hilts, Law Offices of Murray D. Hilts, San Diego, CA, for Petitioner Andrew Nathan O'Malley, 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 **

Jose Manuel Castaneyra Villalba, a native and citizen of Mexico, petitions for review of the Board of Immigration Appeals’ (“BIA”) order denying his motion to reopen. We have jurisdiction under 8 U.S.C. § 1252. We review for abuse of discretion the denial of a motion to reopen. Mohammed v. Gonzales, 400 F.3d 785, 791 (9th Cir. 2005). We deny the petition for review.

The BIA did not abuse its discretion in denying the motion to reopen, where Castaneyra Villalba's evidence, including evidence of being harmed on account of being a Jehovah's Witness, was not previously unavailable, and Castaneyra Villalba did not establish prima facie eligibility for relief. See 8 U.S.C. § 1229a(C)(7); Bhasin v. Gonzales, 423 F.3d 977, 984, 987 (9th Cir. 2005) (new evidence in support of a motion to reopen must have been unavailable at the time of the hearing and must establish prima facie eligibility for the relief sought); 8 C.F.R. § 1003.2(c)(1).

We reject Castaneyra Villalba's contention that the BIA abused its discretion in denying the motion to reopen despite the absence of an opposition. See Limsico v. INS, 951 F.2d 210, 213 (9th Cir. 1991) (BIA has authority to deny unopposed motions to reopen).

PETITION FOR REVIEW DENIED.