FILED
NOT FOR PUBLICATION FEB 24 2014
MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
AUGUSTO MARTINEZ, No. 12-70297
Petitioner, Agency No. A070-064-239
v.
MEMORANDUM*
ERIC H. HOLDER, Jr., Attorney General,
Respondent.
On Petition for Review of an Order of the
Board of Immigration Appeals
Submitted February 18, 2014**
Before: ALARCÓN, O’SCANNLAIN, and FERNANDEZ, Circuit Judges.
Augusto Martinez, a native and citizen of Guatemala, petitions for review of
the Board of Immigration Appeals’ (“BIA”) order dismissing his appeal from an
immigration judge’s (“IJ”) decision denying his motion to reopen removal
proceedings. We have jurisdiction under 8 U.S.C. § 1252. We review for abuse of
*
This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
**
The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
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 dismissing Martinez’s appeal of the
IJ’s denial of his motion to reopen as untimely where it was filed over 90 days after
the agency’s final order of removal, see 8 C.F.R. § 1003.2(c)(2), and Martinez
failed to establish changed circumstances in Guatemala to qualify for the
regulatory exception to the time limitation, see 8 C.F.R. § 1003.2(c)(3)(ii);
Najmabadi v. Holder, 597 F.3d 983, 987 (9th Cir. 2010) (evidence submitted with
motion to reopen must be qualitatively different from the evidence presented at the
original hearing).
Further, to the extent the BIA construed Martinez’s appeal as a new motion
to reopen the IJ’s decision based on evidence not presented to the IJ, the BIA did
not abuse its discretion in denying the motion because Martinez’s new documents
failed to establish material evidence of changed circumstances in Guatemala. See
Najmabadi, 597 F.3d at 990 (holding that evidence presented with motion to
reopen was not material because it merely recounted generalized conditions that
failed to demonstrate petitioner’s situation was appreciably different from the
dangers faced by her fellow citizens).
2 12-70297
The BIA also did not abuse its discretion in denying Martinez’s motion to
reopen where he failed to comply with the threshold requirements of Matter of
Lozada, 19 I. & N. Dec. 637 (BIA 1988), and the alleged ineffective assistance was
not “plain on the face of the administrative record.” See Castillo-Perez v. INS, 212
F.3d 518, 525 (9th Cir. 2000).
PETITION FOR REVIEW DENIED.
3 12-70297