Moises Rodriguez-Valla v. WILLIAM P. BARR, Attorney General

NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
MOISES RODRIGUEZ-VALLA,
Petitioner,
v.
WILLIAM P. BARR, Attorney General,
Respondent.
No. 15-70926
Agency No. A200-827-142
MEMORANDUM*
On Petition for Review of an Order of the
Board of Immigration Appeals
Argued and Submitted April 11, 2019
Seattle, Washington
Before: W. FLETCHER, CALLAHAN, and CHRISTEN, Circuit Judges.
Petitioner Moises Rodriguez-Valla (“Rodriguez-Valla”), a native and citizen
of Mexico, petitions for review of the Board of Immigration Appeals’ (“BIA”)
denial of his motion for reconsideration, motion for reopening, and motion for sua
sponte reopening of his removal proceedings. We have jurisdiction under
8 U.S.C. § 1252(a) and we deny the petition.
1. Rodriguez-Valla filed a motion to reopen after the BIA dismissed his
* This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
FILED
MAY 13 2019
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS

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appeal from the immigration judge’s (“IJ”) removal and voluntary departure order.
The BIA denied the motion to reopen on the ground that Rodriguez-Valla was
ineligible for adjustment of status because he had failed to comply with his
voluntary departure order and there was no evidence that the departure order had
been terminated. Rodriguez-Valla did not timely petition this court for review of
that denial. Instead, he filed a motion for reconsideration with the BIA, asserting
that his voluntary departure period had been extended by his local Department of
Homeland Security (“DHS”) office and attaching exhibits in support of that claim.
Treating Rodriguez-Valla’s motion as a motion for reconsideration, a second
motion for reopening, and a motion for sua sponte reopening, the BIA denied all
three forms of relief. We find the BIA did not abuse its discretion in denying
either reconsideration or reopening, and that Rodriguez-Valla fails to identify a
legal or constitutional error with the BIA’s denial of sua sponte reopening.
2. The BIA did not abuse its discretion in denying reconsideration on the
ground that Rodriguez-Valla had “not identified a material error of fact or law”
with its prior denial of the first motion to reopen. The BIA also correctly declined
to consider Rodriguez-Valla’s new claim and evidence regarding the alleged
extension of his voluntary departure period as part of its reconsideration decision
on the basis that “a motion to reconsider is not a vehicle to raise issues that should
have been presented previously.” See Socop–Gonzalez v. INS, 272 F.3d 1176,

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1180 n.2 (9th Cir. 2001) (en banc) (emphasis in original) (“The purpose of a
motion to reconsider is not to raise new facts, but rather to demonstrate that the IJ
or the BIA erred as a matter of law or fact.”). The record before the BIA when
Rodriguez-Valla filed his first motion to reopen did not indicate that his voluntary
departure had been extended or terminated. Accordingly, the BIA did not err in
concluding that Rodriguez-Valla’s first motion to reopen, which was filed after the
expiration of his voluntary departure period, had no legal effect in terminating his
voluntary departure order or otherwise precluding the penalties for his failure to
depart from taking effect. See 8 C.F.R. § 1240.26(e)(2) (“The filing of a motion to
reopen or a motion to reconsider after the time allowed for voluntary departure has
already expired does not in any way impact the period of time allowed for
voluntary departure under this section.”). We affirm the BIA’s denial of
reconsideration.
3. The BIA also did not abuse its discretion in treating Rodriguez-Valla’s
new claim and evidence as a “second” motion to reopen and denying it as time-
and number-barred. A motion to reopen must be filed “within 90 days of the date
of entry of a final administrative order of removal,” 8 U.S.C. § 1229a(c)(7)(C)(i),
and an alien is limited to one such motion. Id. § 1229a(c)(7)(A); see also 8 C.F.R.
§ 1003.2(c)(2). Rodriguez-Valla’s “second” motion to reopen exceeded both the
statutory time and number limits, and he did not argue that equitable tolling was

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warranted. Thus, we affirm the BIA’s denial of a “second” reopening.
4. Generally, we lack jurisdiction to review a BIA denial of sua sponte
reopening. See Ekimian v. INS, 303 F.3d 1153, 1159 (9th Cir. 2002). We may,
however, “review denials of sua sponte reopening where . . . there is ‘law to apply’
in doing so.” Bonilla v. Lynch, 840 F.3d 575, 587 (9th Cir. 2016). As such, we
have jurisdiction to review the BIA’s denial of sua sponte reopening “for the
limited purpose of reviewing the reasoning behind the decision for legal or
constitutional error.” Id. at 588. Here, however, petitioner fails to identify any
legal or constitutional error with the BIA’s decision not to reopen sua sponte. In
denying sua sponte reopening, the BIA concluded that DHS did not extend
Rodriguez-Valla’s voluntary departure, despite the documentation he submitted in
support of that claim. Although the documentation raises some questions
regarding the actions of DHS in Rodriguez-Valla’s case, particularly in regard to
its issuance of the Form I-210, Rodriguez-Valla ultimately fails to identify any
legal error with the BIA’s interpretation of those documents. Nor can he point to
any law by which we can determine whether the BIA premised its decision on an
incorrect legal understanding. As such, we do not disturb the BIA’s decision to
decline sua sponte reopening, and we deny Rodriguez-Valla’s petition for review.
PETITION DENIED.

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