NOT FOR PUBLICATION FILED
UNITED STATES COURT OF APPEALS MAY 21 2018
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
BYRON FRANCISCO RODRIGUEZ- No. 16-72815
VASQUEZ,
Agency No. A206-500-136
Petitioner,
v. MEMORANDUM*
JEFFERSON B. SESSIONS III, Attorney
General,
Respondent.
On Petition for Review of an Order of the
Board of Immigration Appeals
Submitted May 15, 2018**
Before: SILVERMAN, BEA, and WATFORD, Circuit Judges.
Byron Francisco Rodriguez-Vasquez, a native and citizen of Honduras,
petitions for review of the Board of Immigration Appeals’ (“BIA”) order denying
his motion to reconsider, and his motion to reopen removal proceedings and
reissue its previous decision dismissing his appeal. Our jurisdiction is governed by
*
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).
8 U.S.C. § 1252. We review de novo questions of law, and we review for abuse of
discretion the denial of a motion to reconsider, and a motion to reopen and reissue.
See Ayala v. Sessions, 855 F.3d 1012, 1020 (9th Cir. 2017); Hernandez-Velasquez
v. Holder, 611 F.3d 1073, 1077 (9th Cir. 2010). We deny in part and dismiss in
part the petition for review.
The BIA did not abuse its discretion in denying Rodriguez-Vasquez’s
motion to reconsider as untimely, where he filed it more than 30 days after the
final order of removal. See 8 U.S.C. § 1229a(c)(6)(B); 8 C.F.R. § 1003.2(b)(2).
The BIA did not abuse its discretion in denying Rodriguez-Vasquez’s
motion to reopen and reissue its January 8, 2016, order, where Rodriguez-Vasquez
acknowledged in his declaration that he received the notice “a few days” after the
BIA issued it, and he does not allege ineffective assistance of counsel. See Singh v.
Napolitano, 649 F.3d 899, 901 (9th Cir. 2011) (the BIA has reissued decisions
where an alien has shown lack of notice due to administrative error or ineffective
assistance of counsel). The BIA did not ignore evidence or argument in reaching
this determination. See Najmabadi v. Holder, 597 F.3d 983, 990 (9th Cir. 2010).
We lack jurisdiction to review Rodriguez-Vasquez’s challenges to the BIA’s
discretionary decision not to reconsider proceedings sua sponte, absent a claim of
legal or constitutional error. See Bonilla v. Lynch, 840 F.3d 575, 588 (9th Cir.
2016) (“[T]his court has jurisdiction to review Board decisions denying sua sponte
2 16-72815
reopening for the limited purpose of reviewing the reasoning behind the decisions
for legal or constitutional error.”). Rodriguez-Vasquez presents no such claim
where, contrary to his contentions, the BIA applied the correct standard, did not
fail to consider evidence or argument, and sufficiently articulated its reasoning. See
Najmabadi, 597 F.3d at 990. Accordingly, Rodriguez-Vasquez’s contention that
the BIA violated due process also fails. See Lata v. INS, 204 F.3d 1241, 1246 (9th
Cir. 2000) (requiring error and substantial prejudice to prevail on a due process
claim).
PETITION FOR REVIEW DENIED in part; DISMISSED in part.
3 16-72815
Byron Rodriguez-Vasquez v. Jefferson Sessions
Combined Opinion