Alberto Noriega-Perez v. MERRICK B. GARLAND, Attorney General

NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
ALBERTO NORIEGA-PEREZ,
Petitioner,
v.
MERRICK B. GARLAND, Attorney
General,
Respondent.
No. 18-72721
Agency No. A011-384-206
MEMORANDUM*
On Petition for Review of an Order of the
Board of Immigration Appeals
Submitted January 6, 2023**
San Francisco, California
Before: FRIEDLAND, BADE, and KOH, Circuit Judges.
Alberto Noriega-Perez, a native and citizen of Mexico, petitions for review
of the Board of Immigration Appeals’ (“BIA”) order denying his fourth motion to
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 or reconsider.
* 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
JAN 6 2023
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS

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Mohammed v. Gonzales, 400 F.3d 785, 791 (9th Cir. 2005). We deny in part and
dismiss in part the petition for review.
Noriega-Perez does not present any challenge to the BIA’s dispositive
determination that his motion, whether construed as a motion to reopen or to
reconsider, was time and number barred. See 8 U.S.C. § 1229a(c)(7)(A); 8 C.F.R.
§ 1003.2(c)(2); see also 8 U.S.C. § 1229a(c)(6)(A) & (B); 8 C.F.R. § 1003.2(b)(2).
Additionally, he does not renew his claim of being a United States citizen.
Noriega-Perez has, therefore, waived or abandoned such claims. See Lopez-
Vasquez v. Holder, 706 F.3d 1072, 1079–80 (9th Cir. 2013) (issues not specifically
raised and argued in an opening brief are waived).
We lack jurisdiction to review the BIA’s decision not to reopen proceedings
sua sponte because Noriega-Perez does not argue that a legal or constitutional error
underlies the BIA’s determination. See Bonilla v. Lynch, 840 F.3d 575, 588 (9th
Cir. 2016) (“[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.”).
In his opening brief and in a separate motion, Noriega-Perez challenges the
validity of his conviction underlying his order of removal. We have already
rejected such challenges to his conviction. See United States v. Noriega-Perez,
670 F.3d 1033 (9th Cir. 2012) (denying direct appeal); United States v. Noriega-

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Perez, 467 F. App’x 698 (9th Cir. 2012) (rejecting due process claims and holding
that there was sufficient evidence to support convictions). Therefore, we do not
reconsider this argument. See Paulo v. Holder, 669 F.3d 911, 917 (9th Cir. 2011).
We deny Noriega-Perez’s motion, docket 13, to vacate his conviction and
sentence.
PETITION DENIED in part and DISMISSED in part.

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