Nelson Benitez-Cruz v. JEFFERSON B. SESSIONS III, Attorney General

NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
NELSON BENITEZ-CRUZ,
Petitioner,
v.
JEFFERSON B. SESSIONS III, Attorney
General,
Respondent.
No. 15-70714
Agency No. A070-129-417
MEMORANDUM *
On Petition for Review of an Order of the
Board of Immigration Appeals
Submitted April 11, 2017**
Before: GOULD, CLIFTON, and HURWITZ, Circuit Judges.
Nelson Benitez-Cruz’s opposed motion to stay appellate proceedings or in
the alternative refer this case to mediation (Docket Entry No. 27) is denied.
Benitez-Cruz, a native and citizen of El Salvador, petitions for review of the
Board of Immigration Appeals’ (“BIA”) order denying his second motion to
* 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).
FILED
APR 20 2017
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS

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2 15-70714
reopen removal proceedings. We have jurisdiction under 8 U.S.C. § 1252. We
review for abuse of discretion the denial of a motion to reopen and review de novo
claims of due process violations. Cano-Merida v. INS, 311 F.3d 960, 964 (9th Cir.
2002). We deny the petition for review.
The BIA did not abuse its discretion in denying Benitez-Cruz’s second
motion to reopen as time and number-barred where it was filed over seventeen
years after the BIA’s final order of removal, see 8 C.F.R. § 1003.2(c)(2), and
where Benitez-Cruz failed to establish that he qualified for the regulatory
exception to the time and number limitations imposed on filing a motion to reopen,
see 8 C.F.R. § 1003.2(c)(3)(ii); Najmabadi v. Holder, 597 F.3d 983, 986 (9th Cir.
2010) (this court “defer[s] to the BIA’s exercise of discretion unless it acted
arbitrarily, irrationally, or contrary to law”). We reject Benitez-Cruz’s contention
that the BIA erred by not addressing his application for temporary protected status
in its order denying his motion to reopen. See Lata v. INS, 204 F.3d 1241, 1246
(9th Cir. 2000) (requiring prejudice to prevail on a due process claim).
PETITION FOR REVIEW DENIED.

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