NOT FOR PUBLICATION FILED
UNITED STATES COURT OF APPEALS FEB 21 2018
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
BORIS ERNESTO GUARDADO- No. 16-70706
SANCHEZ,
Agency No. A070-408-558
Petitioner,
v. MEMORANDUM*
JEFFERSON B. SESSIONS III, Attorney
General,
Respondent.
On Petition for Review of an Order of the
Board of Immigration Appeals
Submitted February 13, 2018**
Before: LEAVY, FERNANDEZ, and MURGUIA, Circuit Judges.
Boris Ernesto Guardado-Sanchez, a native and citizen of El Salvador,
petitions for review of the Board of Immigration Appeals’ (“BIA”) order
dismissing his appeal from an immigration judge’s order denying his motions to
*
This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
**
The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
reopen and reconsider deportation proceedings conducted in absentia. Our
jurisdiction is governed by 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, 791-92 (9th
Cir. 2005). We deny in part, grant in part, and dismiss in part the petition for
review.
The BIA did not abuse its discretion in denying Guardado-Sanchez’s motion
to reopen proceedings conducted in absentia where the record establishes that his
attorney was provided with the notices of his hearing, and where he has not
demonstrated reasonable cause for his failure to appear at his hearing. 8 U.S.C. §
1252(b) (1990); 8 C.F.R. § 3.24 (1987).
The BIA abused its discretion in denying Guardado-Sanchez’s motion to
reopen to seek special rule cancellation of removal under the Nicaraguan
Adjustment and Central American Relief Act (“NACARA”). The record contains
documents that demonstrate that it is more likely than not that Guardado-Sanchez
was in Temporary Protected Status prior to October 31, 1991. See 8 C.F.R. §
1240.60 (Salvadoran nationals that applied for temporary protected status on or
before October 31, 1991 are deemed to be registered ABC class members). The
BIA’s contrary determination, that Guardado-Sanchez did not demonstrate that he
was prima facie eligible for NACARA relief for not being a registered ABC class
member is unsupported by the record. Albillo-De Leon v. Gonzales, 410 F.3d 1090,
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1093-94 (9th Cir. 2005) (a prima facie showing of NACARA eligibility “need not
be conclusive but need suggest only that it would be worthwhile to reopen
proceedings.” (internal quotations omitted)).
We lack jurisdiction to consider Guardado-Sanchez’s unexhausted
contentions that his former attorney provided ineffective assistance and that the
immigration judge that ordered him removed in absentia should have instead
administratively closed his case. Tijani v. Holder, 628 F.3d 1071, 1080 (9th Cir.
2010) (the court lacks jurisdiction to consider legal claims not presented to the
agency in the alien’s proceedings).
We lack jurisdiction to review the BIA’s discretionary denial of sua sponte
reopening. Bonilla v. Lynch, 840 F.3d 575, 588 (9th Cir. 2016) (the court has
jurisdiction to review BIA decisions denying sua sponte reopening only for the
limited purpose of reviewing the reasoning behind the decision for legal or
constitutional error). Guardado-Sanchez’s contention that the BIA used an
incorrect legal standard in denying sua sponte reopening is unsupported by the
record, and therefore does not raise a colorable legal challenge to invoke
jurisdiction.
Each party shall bear its own costs for this petition for review.
PETITION FOR REVIEW DENIED in part; GRANTED in part; and
DISMISSED in part.
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