NOT FOR PUBLICATION FILED
UNITED STATES COURT OF APPEALS OCT 21 2019
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
JUAN BOTELLO-SALCEDO, No. 18-70672
Petitioner, Agency No. A095-786-099
v.
MEMORANDUM*
WILLIAM P. BARR, Attorney General,
Respondent.
On Petition for Review of an Order of the
Board of Immigration Appeals
Submitted October 15, 2019**
Before: FARRIS, LEAVY, and RAWLINSON, Circuit Judges.
Juan Botello-Salcedo, a native and citizen of Mexico, petitions for review of
the Board of Immigration Appeals’ (“BIA”) order denying his motion to reopen
removal proceedings. Our jurisdiction is governed by 8 U.S.C. § 1252. We review
for abuse of discretion the denial of a motion to reopen, and review de novo
*
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).
questions of law. Mohammed v. Gonzales, 400 F.3d 785, 791-92 (9th Cir. 2005).
We deny in part and dismiss in part the petition for review.
The BIA did not abuse its discretion in denying Botello-Salcedo’s motion to
reopen as untimely, where he filed the motion beyond the applicable filing
deadline, and did not show the motion was subject to any exceptions to the
deadline. See 8 C.F.R. § 1003.2(c)(2), (3) (subject to exceptions, a motion to
reopen must be filed no later than 90 days after the date on which the final
administrative decision was rendered); see also Matter of M-S-, 22 I. & N. Dec.
349, 356-57 (BIA 1998) (a motion to reopen seeking only to apply for relief
unavailable to the movant at the time of the hearing is still subject to the regulatory
requirements governing motions to reopen).
We do not consider Botello-Salcedo’s unexhausted contentions that the BIA
was not permitted to impose the 90-day deadline under the circumstances
presented, or that he showed due diligence for equitable tolling of the filing
deadline. See Tijani v. Holder, 628 F.3d 1071, 1080 (9th Cir. 2010) (the court
lacks jurisdiction to consider legal claims not presented in an alien’s administrative
proceedings before the agency).
Our jurisdiction to review BIA decisions denying sua sponte reopening is
limited to reviewing the reasoning behind the decisions for legal or constitutional
2 18-70672
error. See Bonilla v. Lynch, 840 F.3d 575, 588 (9th Cir. 2016). Botello-Salcedo
has not established that the BIA’s denial of sua sponte reopening involved any
“incorrect legal premise.” See id.
We deny as unnecessary Botello-Salcedo’s request for judicial notice.
PETITION FOR REVIEWED DENIED in part; DISMISSED in part.
3 18-70672