Cristina Guadalupe Pereira- Romero v. MERRICK B. GARLAND, Attorney General

NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
CRISTINA GUADALUPE PEREIRA-
ROMERO,
Petitioner,
v.
MERRICK B. GARLAND, Attorney
General,
Respondent.
No. 20-73296
Agency No. A208-274-074
MEMORANDUM*
On Petition for Review of an Order of the
Board of Immigration Appeals
Submitted November 15, 2022**
San Francisco, California
Before: McKEOWN and PAEZ, Circuit Judges, and MOLLOY,*** District Judge.
* 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 Donald W. Molloy, United States District Judge for
the District of Montana, sitting by designation.
FILED
DEC 9 2022
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS

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Cristina Guadalupe Pereira-Romero, a native and citizen of El Salvador,
petitions for review of the Board of Immigration Appeals’ (“BIA”) denial of her
motion to reopen for abuse of discretion. We have jurisdiction under 8 U.S.C.
§ 1252 and review for abuse of discretion. Nababan v. Garland, 18 F.4th 1090,
1094 (9th Cir. 2021). “The BIA abuses its discretion when it acts arbitrarily,
irrationally, or contrary to the law, and when it fails to provide a reasoned
explanation for its actions.” B.R. v. Garland, 26 F.4th 827, 835 (9th Cir. 2022)
(internal citations omitted). Pereira-Romero also challenges the BIA’s declination
to reopen under its sua sponte authority. “[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.” Bonilla v.
Lynch, 840 F.3d 575, 588 (9th Cir. 2016). We deny the petition in part and dismiss
the petition in part.
1. The BIA did not abuse its discretion in finding that Pereira-Romero
failed to present new, previously unavailable evidence. See 8 C.F.R.
§ 1003.2(c)(1) (“A motion to reopen proceedings shall not be granted unless it
appears to the Board that evidence sought to be offered is material and was not
available and could not have been discovered or presented at the former hearing.”).
The substance of Pereira-Romero’s motion concerns events that occurred prior to
her final merits hearing. Furthermore, Pereira-Romero does not offer viable

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arguments as to why she could not have presented this evidence earlier. See Goel
v. Gonzales, 490 F.3d 735, 738 (9th Cir. 2007) (holding that evidence regarding
prior events could have been obtained and presented at the earlier hearing and thus,
was not “previously unavailable”).
The BIA also denied Pereira-Romero’s motion to reopen for failing to
demonstrate prima facie eligibility for special rule cancellation of removal under
the Violence Against Women Act. However, we need not address this issue, as the
BIA may deny a motion to reopen for “failure to introduce previously unavailable,
material evidence” alone. I.N.S. v. Doherty, 502 U.S. 314, 323 (1992).
Accordingly, we deny Pereira-Romero’s petition on this ground.
2. To the extent that Pereira-Romero challenges the BIA’s decision to
deny sua sponte reopening, she asserts no legal or constitutional error in the BIA’s
reasoning. See Bonilla, 840 F.3d at 588. The BIA declined to reopen her case
under its sua sponte authority as she did not present any “exceptional situations.”
See Matter of J-J-, 21 I. & N. Dec. 976, 984 (BIA 1997). We lack jurisdiction over
such discretionary decisions. See Lara-Garcia v. Garland, 49 F.4th 1271, 1277
(9th Cir. 2022). Accordingly, we dismiss Pereira-Romero’s petition on this
ground.
PETITION FOR REVIEW DISMISSED IN PART AND DENIED IN
PART.

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