NOT FOR PUBLICATION FILED
UNITED STATES COURT OF APPEALS APR 20 2021
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
NATHALIA MATA-GARCILAZO, No. 19-70028
Petitioner, Agency No. A099-477-447
v. MEMORANDUM*
MERRICK B. GARLAND, Attorney
General,
Respondent.
On Petition for Review of an Order of the
Board of Immigration Appeals
Submitted March 17, 2021**
San Francisco, California
Before: MURGUIA and CHRISTEN, Circuit Judges, and LEFKOW,*** District
Judge.
Nathalia Mata-Garcilazo, a native and citizen of Nicaragua and a citizen of
Honduras, petitions for review of the order of the Board of Immigration Appeals
*
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).
***
The Honorable Joan H. Lefkow, United States District Judge for the
Northern District of Illinois, sitting by designation.
(“BIA”) denying her untimely motion to reopen removal proceedings. Mata-
Garcilazo sought exceptions to the time limit based on ineffective assistance of
counsel and changed country conditions. She also requested the BIA to exercise its
authority to reopen her proceedings sua sponte based on exceptional circumstances
and to consider her claim for cancellation of removal based on a change in law. We
have jurisdiction under 8 U.S.C. § 1252(a). We deny the petition for review.
Because the parties are familiar with the facts of this case, we need not
recount them here. We review for abuse of discretion the BIA’s denial of a motion
to reopen. Najmabadi v. Holder, 597 F.3d 983, 986 (9th Cir. 2010). We review the
BIA’s findings of fact for substantial evidence. Id.; Lin v. Ashcroft, 377 F.3d 1014,
1024 (9th Cir. 2004).
The BIA did not abuse its discretion in denying Mata-Garcilazo’s motion to
reopen as untimely. See 8 C.F.R. § 1003.2(c)(2). Mata-Garcilazo did not establish
changed country conditions in Nicaragua or Honduras that are material to any of
her claims for relief. See 8 C.F.R. § 1003.2(c)(3)(ii) (requiring material evidence of
changed circumstances to qualify for exception to the time and numerical
limitations for motions to reopen); Najmabadi, 597 F.3d at 987–90 (evidence must
be “qualitatively different” to warrant reopening). The BIA found that the country
conditions evidence “reflect[ed] political protests have taken place in Nicaragua
for many years, including at the time of [Mata-Garcilazo’s] removal proceedings in
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2011,” and that the recent political protests became less violent after the
government agreed to engage in dialogue. The BIA also found “[t]he evidence
show[ed] that gender violence in Honduras has been a concern for many years,
particularly since 2009, and the government continues to take steps to control gang
violence.” Accordingly, the BIA’s determinations were not “arbitrary, irrational, or
contrary to law.” See Lin v. Holder, 588 F.3d 981, 989 (9th Cir. 2009) (upholding
the BIA’s determination that the petitioner failed to establish a material change in
country conditions where the decision was not “arbitrary, irrational, or contrary to
law”) (citation omitted).
The BIA’s finding that Mata-Garcilazo did not establish due diligence in
discovering the ineffective assistance of her counsel is supported by substantial
evidence. See Avagyan v. Holder, 646 F.3d 672, 679 (9th Cir. 2011) (“First, we
determine if (and when) a reasonable person in petitioner's position would suspect
the specific fraud or error underlying her motion to reopen.”). Significantly, the
BIA found that record documents reflecting that her appeal had been filed pro se
were dated years before Mata-Garcilazo filed her motion to reopen, and she could
not specify when she conferred with legal counsel before conferring with current
counsel in 2018.
Because the BIA did not abuse its discretion in denying the motion to
reopen, we need not reach Mata-Garcilazo’s arguments that she has shown prima
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facie eligibility for asylum, withholding of removal, or relief under CAT. See
Simeonov v. Ashcroft, 371 F.3d 532, 538 (9th Cir. 2004) (courts and agencies are
not required to decide issues unnecessary to the results they reach).
Nor did the BIA err in denying her request to reopen her removal
proceedings based on Pereira v. Sessions, –– U.S. ––, 138 S. Ct. 2105 (2018). The
BIA addressed Pereira by assuming that Mata-Garcilazo was temporally eligible
for cancellation of removal. In finding that she failed to prima facie establish that
her citizen children would suffer exceptional and extremely unusual hardship upon
her removal, the BIA did not rely on an incorrect application of the prima facie
standard. See Montero-Martinez v. Ashcroft, 277 F.3d 1137, 1144 (9th Cir. 2002)
(holding that judicial review of discretionary acts by the BIA is limited to “the
purely legal and hence non-discretionary” aspects of the BIA's action).
Likewise, we lack jurisdiction to review the BIA’s denial of sua sponte
reopening because the BIA did not rely on an incorrect legal premise in its
reasoning. Bonilla v. Lynch, 840 F.3d 575, 588 (9th Cir. 2016) (“[T]his court has
jurisdiction to review [BIA] decisions denying sua sponte reopening for the limited
purpose of reviewing the reasoning behind the decisions for legal or constitutional
error.”); see Menendez v. Whitaker, 908 F.3d 467, 471 (9th Cir. 2018). Instead, the
BIA concluded that Mata-Garcilazo failed to establish “exceptional circumstances
to warrant granting of her untimely motion,” which is precisely the precise of
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discretionary decision we lack jurisdiction to review. See Bonilla, 840 F.3d at 585–
86.
PETITION DENIED.
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