David Varela Bustamante v. MERRICK B. GARLAND, Attorney General

NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
DAVID VARELA BUSTAMANTE,
Petitioner,
v.
MERRICK B. GARLAND, Attorney
General,
Respondent.
No. 20-71061
Agency No. A200-709-283
MEMORANDUM*
On Petition for Review of an Order of the
Board of Immigration Appeals
Submitted September 14, 2021**
Before: PAEZ, NGUYEN, and OWENS, Circuit Judges.
David Varela Bustamante, native and citizen of Mexico, petitions for review
of the Board of Immigration Appeals’ (“BIA”) order denying his motion to reopen
removal proceedings. Our jurisdiction is governed by 8 U.S.C. § 1252. We review
for abuse of discretion the BIA’s denial of a motion to reopen. Bonilla v. Lynch,
* 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
SEP 16 2021
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS

-- 1 of 2 --

2 20-71061
840 F.3d 575, 581 (9th Cir. 2016). We deny in part and dismiss in part the petition
for review.
The BIA did not abuse its discretion in denying as untimely Varela
Bustamante’s motion to reopen where it was filed more than three years after the
order of removal became final. See 8 C.F.R. § 1003.2(c)(2). We lack jurisdiction
to consider Varela Bustamante’s contentions regarding equitable tolling because he
did not raise them to the BIA. See Barron v. Ashcroft, 358 F.3d 674, 677-78 (9th
Cir. 2004) (court lacks jurisdiction to review claims not presented to the agency).
We also lack jurisdiction to review the agency’s decision not to reopen
removal proceedings sua sponte. See Bonilla, 840 F.3d at 588 (“[T]his court has
jurisdiction to review Board decisions denying sua sponte reopening for the limited
purpose of reviewing the reasoning behind the decisions for legal or constitutional
error.”).
PETITION FOR REVIEW DENIED in part; DISMISSED in part.

-- 2 of 2 --