NOT FOR PUBLICATION FILED
FEB 3 2022
UNITED STATES COURT OF APPEALS
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
JESUS A. SANCHEZ OLIVA, No. 20-72714
Petitioner, Agency No. A209-944-237
v.
MERRICK B. GARLAND, Attorney MEMORANDUM*
General,
Respondent.
On Petition for Review of an Order of the
Board of Immigration Appeals
Argued and Submitted December 9, 2021
Pasadena, California
*
This disposition is not appropriate for publication and is not
precedent except as provided by Ninth Circuit Rule 36-3.
Before: W. FLETCHER and RAWLINSON, Circuit Judges, and LIBURDI,**
District Judge.
Jesus Sanchez Oliva, a native and citizen of Honduras, petitions for review of
a Board of Immigration Appeals (BIA) order denying his untimely motion to reopen
removal proceedings. We have jurisdiction under 8 U.S.C. § 1252. We deny the
petition for review in part and dismiss in part for lack of jurisdiction.
We review the BIA’s denial of motions to reopen for abuse of discretion,
Cano-Merida v. INS, 311 F.3d 960, 964 (9th Cir. 2002), and reverse only if the BIA’s
decision was arbitrary, irrational, or contrary to law. Valeriano v. Gonzales, 474 F.3d
669, 672 (9th Cir. 2007). We review the BIA’s factual findings for substantial
evidence. Barrios v. Holder, 581 F.3d 849, 854 (9th Cir. 2009).
A motion to reopen must ordinarily be filed within ninety days after the final
administrative order of removal is entered. 8 U.S.C. § 1229a(c)(7)(C)(i). The ninety-
day deadline does not apply, however, if the motion to reopen is based on changed
country conditions. Id. § 1229a(c)(7)(C)(ii); see also Go v. Holder, 744 F.3d 604,
607–09 (9th Cir. 2014) (changed country conditions exception also applies to
motions to reopen to assert claims under the Convention Against Torture). A
**
The Honorable Michael T. Liburdi, United States District Judge for
the District of Arizona, sitting by designation.
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petitioner seeking to reopen based on changed country conditions must show that
“‘circumstances have changed sufficiently that a petitioner who previously did not
have a legitimate claim’ now does.” Agonafer v. Sessions, 859 F.3d 1198, 1204 (9th
Cir. 2017) (quoting Malty v. Ashcroft, 381 F.3d 942, 945 (9th Cir. 2004)).
The BIA did not abuse its discretion in denying Sanchez’s untimely motion to
reopen. In the initial removal proceeding, Sanchez argued only that he was
persecuted in Honduras based on his refusal to cooperate with gangs. He did not
argue that he was persecuted because he is gay. Therefore, even had Sanchez showed
that conditions in Honduras had materially worsened for gay men, he did not show
that circumstances had changed relevant to the proceeding he sought to reopen. Even
had his status as a gay man been at issue in the initial proceeding, the evidence
Sanchez submitted did not illustrate that discrimination against gay men in Honduras
had materially worsened since he initially sought relief from removal. See Agonafer,
859 F.3d at 1204 (“[N]ewly submitted evidence must be ‘qualitatively different’
from the evidence presented at the previous hearing.” (quoting Malty, 381 F.3d at
945)). The evidence instead showed that gay men have long been persecuted in
Honduras and that conditions have remained largely unchanged since 2018.
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Sanchez likewise failed to show that conditions in Honduras have materially
changed for individuals resisting gang activity. His submitted evidence either
predated his initial removal proceeding, see 8 U.S.C. § 1229a(c)(7)(C)(ii), or merely
recounted the evidence presented at his initial proceeding, see Agonafer, 859 F.3d at
1204. Moreover, Sanchez did not establish that the alleged change in conditions was
material to his eligibility for relief. See Ramirez-Munoz v. Lynch, 816 F.3d 1226,
1228 (9th Cir. 2016) (the BIA may deny a motion to reopen for failure to establish
prima facie eligibility for the relief sought); Barrios, 581 F.3d at 854–55 (young men
resisting gang violence is not a particular social group), abrogated in part on other
grounds by Henriquez-Rivas v. Holder, 707 F.3d 1081 (9th Cir. 2013) (en banc).
Thus, the BIA did not abuse its discretion in denying his untimely motion to reopen.
We lack jurisdiction to review the BIA’s decision not to exercise its sua sponte
authority to reopen proceedings, as the decision was purely discretionary and not
based on legal or constitutional error. Lona v. Barr, 958 F.3d 1225, 1232–33 (9th
Cir. 2020).
PETITION FOR REVIEW DENIED in part and DISMISSED in part.
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