FILED
NOT FOR PUBLICATION
MAR 24 2022
UNITED STATES COURT OF APPEALS MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
JUAN ROLANDO HERNANDEZ- Nos. 11-73790
AGUILAR, 19-71762
20-70466
Petitioner,
Agency No. A092-703-483
v.
MERRICK B. GARLAND, Attorney MEMORANDUM*
General,
Respondent.
On Petition for Review of an Order of the
Board of Immigration Appeals
Submitted March 18, 2022**
Las Vegas, Nevada
Before: KLEINFELD, D.M. FISHER,*** and BENNETT, Circuit Judges.
*
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 D. Michael Fisher, United States Circuit Judge for the
U.S. Court of Appeals for the Third Circuit, sitting by designation.
Juan Hernandez-Aguilar argues in three petitions that the BIA erred in
denying his multiple motions before the BIA to reopen his case and his multiple
motions to reconsider prior decisions. All three petitions are denied in part and
dismissed in part.1
Because Petitioner is removable for a controlled substance conviction, our
review of the BIA’s decisions is limited to constitutional claims or questions of
law. 8 U.S.C. § 1252(a)(2)(D). We review the BIA’s determinations of questions
of law and legal conclusions de novo. Vitug v. Holder, 723 F.3d 1056, 1062 (9th
Cir. 2013).
With regard to the 2011 motion to reopen, we find no legal or constitutional
error. To the extent that Petitioner attacks the BIA’s factual determinations, we
lack jurisdiction. Petitioner asserts that the BIA violated his due process rights. In
order to succeed on this claim, he must show prejudice such that the outcome of
the proceedings was affected by the violation. Cruz Rendon v. Holder, 603 F.3d
1
Petitioner has made a motion for us to take judicial notice of a
Memorandum by the former Department of Homeland Security Secretary Janet
Napolitano dated June 15, 2012. Case No. 11-73790, Dkt. No. 11. This motion is
denied. We cannot independently take judicial notice of a document not part of the
record. Aguilar-Osorio v. Garland, 991 F.3d 997, 1000 (9th Cir. 2021).
2
1104, 1109 (9th Cir. 2010). Even if there were a violation here, and we do not
believe there was, Petitioner cannot show prejudice because his evidence only
makes reference to continuing problems in Mexico and fails to show any change in
country conditions. Rodriguez v. Garland, 990 F.3d 1205, 1210 (9th Cir. 2021).
With regard to the 2018 and 2019 motions to reopen and motions to
reconsider, Petitioner has waived any objection to the BIA’s finding that all of the
motions were either time- or number-barred by failing to raise the issue in his
opening brief. Cruz v. Int’l Collection Corp., 673 F.3d 991, 998 (9th Cir. 2012).
Finally, with regard to Petitioner’s three motions to the BIA to sua sponte
reopen his case, we lack jurisdiction to review the BIA’s decisions. Singh v.
Holder, 771 F.3d 647, 650 (9th Cir. 2014).
Petitions DENIED in part and DISMISSED in part.
3