NOT FOR PUBLICATION FILED
UNITED STATES COURT OF APPEALS NOV 16 2021
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
RAMON PEREZ PACHECO, No. 20-73133
Petitioner, Agency No. A092-201-687
v.
MEMORANDUM*
MERRICK B. GARLAND, Attorney
General,
Respondent.
On Petition for Review of an Order of the
Board of Immigration Appeals
Submitted November 8, 2021**
Before: CANBY, TASHIMA, and MILLER, Circuit Judges.
Ramon Perez Pacheco, a native and citizen of Mexico, petitions for review
of the Board of Immigration Appeals’ (“BIA”) order denying his motion to reopen
and reconsider. We have jurisdiction under 8 U.S.C. § 1252. We review de novo
questions of law, including claims of due process violations in immigration
*
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).
proceedings. Simeonov v. Ashcroft, 371 F.3d 532, 535 (9th Cir. 2004). We review
for abuse of discretion the denial of a motion to reopen or reconsider. Mohammed
v. Gonzales, 400 F.3d 785, 791 (9th Cir. 2005). We deny the petition for review.
Perez Pacheco’s contention that the lack of time, date, and place in his
Notice to Appear deprived the immigration court of jurisdiction is foreclosed by
this court’s decision in Aguilar Fermin v. Barr, 958 F.3d 887, 895 (9th Cir. 2020)
(“the lack of time, date, and place in the NTA sent to [petitioner] did not deprive
the immigration court of jurisdiction over her case”). His related contention that
his right to due process was violated by finding him removable without jurisdiction
fails. See Lata v. INS, 204 F.3d 1241, 1246 (9th Cir. 2000) (requiring error to
prevail on a due process claim).
The BIA did not abuse its discretion in denying the motion to reopen
removal proceedings to pursue claims for asylum, withholding of removal, and
relief under the Convention Against Torture, where Perez Pacheco’s evidence of
phone threats was not previously unavailable and did not establish prima facie
eligibility for relief. See 8 C.F.R. § 1003.2(c)(1); see also Bhasin v. Gonzales, 423
F.3d 977, 984 (9th Cir. 2005) (new evidence in support of a motion to reopen must
have been unavailable at the time of the hearing and must establish prima facie
eligibility for the relief sought).
The BIA also did not abuse its discretion in denying Perez Pacheco’s motion
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to reopen removal proceedings to reassess his eligibility for cancellation of
removal, where the non-cumulative evidence of exceptional and extremely unusual
hardship to his U.S. citizen children was insufficient to establish prima facie
eligibility for relief. See Garcia v. Holder, 621 F.3d 906, 912 (9th Cir. 2010)
(providing that a motion to reopen will not be granted absent a showing of prima
facie eligibility for relief based on demonstrating a reasonable likelihood that the
statutory requirements for relief have been satisfied); see also Fernandez v.
Gonzales, 439 F.3d 592, 603 (9th Cir. 2006) (court has jurisdiction to review the
agency’s decision where “the evidence submitted addresses a hardship ground so
distinct from that considered previously as to make the motion to reopen a request
for new relief”).
Perez Pacheco does not raise, and therefore waives, any challenge to the
BIA’s determination that his motion to reconsider was untimely and did not
identify an error of fact or law. See Lopez-Vasquez v. Holder, 706 F.3d 1072,
1079-80 (9th Cir. 2013) (issues not specifically raised and argued in an opening
brief are waived).
We do not consider the materials Perez Pacheco references in his opening
brief that are not part of the administrative record. See Fisher v. INS, 79 F.3d 955,
963 (9th Cir. 1996) (en banc) (court’s review is limited to the administrative
record).
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The temporary stay of removal remains in place until issuance of the
mandate.
PETITION FOR REVIEW DENIED.
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