Yobani Carlos-Rivera v. MERRICK B. GARLAND, Attorney General

NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
YOBANI CARLOS-RIVERA,
Petitioner,
v.
MERRICK B. GARLAND, Attorney
General,
Respondent.
No. 20-73281
Agency No. A092-572-896
MEMORANDUM*
On Petition for Review of an Order of the
Board of Immigration Appeals
Submitted June 10, 2022**
Seattle, Washington
Before: IKUTA and MILLER, Circuit Judges, and PREGERSON,*** District
Judge.
FILED
JUN 27 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 Dean D. Pregerson, United States District Judge for
the Central District of California, sitting by designation.

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Yobani Carlos-Rivera seeks review of a decision of the Board of
Immigration Appeals (BIA) declining to sua sponte reopen his removal
proceedings or to grant equitable tolling of the deadline. Carlos-Rivera has not
shown that this decision “rel[ied] on a constitutionally or legally erroneous
premise.” Bonilla v. Lynch, 840 F.3d 575, 592 (9th Cir. 2016). Nothing in the
record indicates that the BIA based its decision on the faulty assumption that
Carlos-Rivera would be ineligible for relief if the proceedings were reopened. Nor
did the BIA err in rejecting Carlos-Rivera’s argument that he could not have filed
his motion to reopen earlier because of the “departure bar” in 8 C.F.R. § 1003.2(d).
Rather, the BIA correctly noted that Carlos-Rivera did not file his motion until
eight years after our 2011 ruling that no such restriction applies. See Reyes-Torres
v. Holder, 645 F.3d 1073, 1076–77 (9th Cir. 2011). We also reject Carlos-Rivera’s
argument that the BIA erred by not recognizing that his 1993 deportation order was
based on an offense that was subsequently determined not to be an aggravated
felony. See United States v. Rivera-Sanchez, 247 F.3d 905, 909 (9th Cir. 2001).
The BIA recognized that Rivera-Sanchez constituted a fundamental change in the
law but lawfully exercised its discretion to hold that neither equitable tolling nor
sua sponte reopening was warranted based on the totality of the circumstances. See
Lona v. Barr, 958 F.3d 1224, 1230 (9th Cir 2020); Bonilla, 840 F.3d at 585.
2

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Finally, Carlos-Rivera has not shown that the BIA erred by departing from its own
established policy. See Matter of G-C-L-, 23 I. & N. Dec. 359, 362 (BIA 2002).
Therefore, we lack jurisdiction to review the BIA’s denial of Carlos-Rivera’s
motion. See Bonilla, 840 F.3d at 585.
We also lack jurisdiction to consider Carlos-Rivera’s argument that the 1993
deportation order entered against him was illegal on the ground that it was not
supported by a judgment of conviction. Carlos-Rivera failed to raise this issue to
the BIA and no exception to the exhaustion requirement applies. See 8 U.S.C.
§ 1252(d); see also Sola v. Holder, 720 F.3d 1134, 1135 (9th Cir. 2013) (per
curiam).
PETITION DISMISSED.
3

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