JORGE GUERRA-LEYVA, AKA Jorge C. Guerra v. MERRICK B. GARLAND, Attorney General

NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
JORGE GUERRA-LEYVA, AKA Jorge
C. Guerra,
Petitioner,
v.
MERRICK B. GARLAND, Attorney
General,
Respondent.
No. 18-70504
Agency No. A074-059-323
MEMORANDUM*
On Petition for Review of an Order of the
Board of Immigration Appeals
Submitted June 13, 2022**
San Francisco, California
Before: S.R. THOMAS and GOULD, Circuit Judges, and WU,*** District Judge.
FILED
JUN 15 2022
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
* 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 George H. Wu, United States District Judge for the
Central District of California, sitting by designation.

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Jorge Guerra-Leyva, a native of Cuba, petitions for review of the Board of
Immigration Appeals’ (“BIA”) dismissal of his appeal from the denial of his
motion to reopen his removal proceedings. We review the agency’s denial of a
motion to reopen for abuse of discretion. Agonafer v. Sessions, 859 F.3d 1198,
1203 (9th Cir. 2017). We have jurisdiction under 8 U.S.C. § 1252. We dismiss in
part and deny in part the petition for review.
I
Guerra-Leyva’s motion to reopen was untimely. Motions to reopen must be
filed within ninety days of a final removal order. 8 C.F.R. § 1003.2(c)(2); see id.
§ 1003.2(c)(3)(ii) (providing that motions to reopen based on changed country
conditions may be filed at any time). Guerra-Leyva’s motion was filed about
eighteen years after he was ordered removed. The BIA properly concluded that his
untimeliness should not be excused.
A
The BIA acted within its discretion in determining that Guerra-Leyva failed
to show changed country conditions material to his claims for relief. Guerra-Leyva
produced no evidence suggesting that the conditions relevant to his claims of
future persecution and torture were different from those that existed at the time of
his 1999 removal hearing. His own affidavit, submitted with his motion, describes
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the present conditions in Cuba as a continuation of past conditions, noting that the
government “continues to be a strong dictatorship” (emphasis added). Further, the
shifts in diplomatic relations that Guerra-Leyva claims will make it more likely
that he will be removed to Cuba are not material to his claims for relief. The fact
of removal is assumed when evaluating a petitioner’s case for asylum and related
relief. Thus, the actual probability of removal has no bearing on the strength of a
claim. See, e.g., Al-Harbi v. INS, 242 F.3d 882, 890 (9th Cir. 2001) (requiring
“proof of a well-founded fear of future persecution if returned to Iraq” to
demonstrate asylum eligibility (emphasis added)).
B
The BIA also acted within its discretion in declining to equitably toll the
deadline for Guerra-Leyva’s motion to reopen. Guerra-Leyva’s primary argument
for equitable tolling is that at the time of his deportation hearing in 1999, he was
eligible for adjustment of status under the Cuban Adjustment Act (“CAA”), but
was never informed of this possibility and was instead told that he could remain in
the United States indefinitely if he did not contest his removal proceedings.1 This
1 To the extent Guerra-Leyva argued below for equitable tolling on the basis
of ineffective assistance of counsel, he has waived this argument in his petition for
review.
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argument fails because the BIA correctly concluded that Guerra-Leyva was not, in
fact, eligible for adjustment under the CAA at the time of his hearing.
Under the CAA, Cuban refugees may apply for adjustment of status on an
expedited timeline, but they must nevertheless be admissible under federal
immigration law. See Cuban Adjustment Act, Pub. L. No. 89-732, 80 Stat. 1161
(providing that “the status of any alien who is a native or citizen of Cuba . . . may
be adjusted” if, among other requirements, they are “admissible to the United
States”). Guerra-Leyva argues he was admissible, as his controlled substances
conviction under Nev. Rev. Stat. § 453.338 could not disqualify him pursuant to 8
U.S.C. § 1182(a)(2)(A)(i)(II)—even under the modified-categorical
approach—because the judgment of conviction was ambiguous as to the substance
he was convicted of possessing.
Guerra-Leyva’s argument is foreclosed by the Supreme Court’s recent
decision in Pereida v. Wilkinson, 141 S. Ct. 754 (2021), and our subsequent
decision in Marinelarena v. Garland, 6 F.4th 975 (9th Cir. 2021). In Pereida, the
Court held that an applicant convicted under a divisible state statute that includes
some disqualifying offenses retains the burden of showing that his conviction was
not disqualifying. See 141 S. Ct. at 763 & n.4. Applying that holding, we held
that, when faced with such a situation, a petitioner cannot succeed by pointing to
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the ambiguity of the record; since the petitioner retains the burden, “ambiguity is
insufficient.” Marinelarena, 6 F.4th at 978. Accordingly, because Guerra-Leyva
was convicted under a statute divisible by substance, he cannot prevail by claiming
that the record of his conviction was ambiguous as to the type of substance he
actually possessed.
II
We lack jurisdiction over Guerra-Leyva’s claim that the agency erred in
denying his request for sua sponte reopening. See Ekimian v. INS, 303 F.3d 1153,
1159–60 (9th Cir. 2002) (holding that courts generally lack jurisdiction over
agency decisions not to sua sponte reopen proceedings). Because the BIA’s
decision was not “obvious[ly]” grounded in a mistaken belief that it lacked legal
authority, the exception to this general rule applied in Bonilla v. Lynch, 840 F.3d
575, 588 (9th Cir. 2016), does not apply here. Lona v. Barr, 958 F.3d 1225, 1234
(9th Cir. 2020).
PETITION DISMISSED IN PART; DENIED IN PART
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