Ramiro Tellez-Muro v. MERRICK B. GARLAND, Attorney General

NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
RAMIRO TELLEZ-MURO,
Petitioner,
v.
MERRICK B. GARLAND, Attorney
General,
Respondent.
No. 23-213
Agency No.
A200-670-908
MEMORANDUM*
On Petition for Review of an Order of the
Board of Immigration Appeals
Submitted March 26, 2024**
Seattle, Washington
Before: WARDLAW and MILLER, Circuit Judges, and CORLEY, District
Judge.***
Ramiro Tellez-Muro, a native and citizen of Mexico, petitions for review of
a Board of Immigration Appeals (“BIA”) decision denying his motion to reopen.
* 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 Jacqueline Scott Corley, United States District Judge
for the Northern District of California, sitting by designation.
FILED
APR 2 2024
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS

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We have jurisdiction under 8 U.S.C. § 1252, and we deny the petition for review.
Because Tellez-Muro challenges the BIA’s denial “of sua sponte reconsideration
or reopening,” we have jurisdiction to review only for “legal or constitutional
error.” Lona v. Barr, 958 F.3d 1225, 1227 (9th Cir. 2020) (quoting Bonilla v.
Lynch, 840 F.3d 575, 588 (9th Cir. 2016)).
1. The BIA did not commit legal or constitutional error in determining
that Tellez-Muro’s motion to reopen was untimely. The agency accurately
concluded that the motion, which was filed more than three years after proceedings
concluded, failed to comply with the applicable 90-day deadline. See 8 U.S.C. §
1229a(c)(7)(C)(i); 8 C.F.R. § 1003.2(c)(2). The deadline plainly applies, for
Tellez-Muro did not invoke any statutory exception to the 90-day deadline or
invoke equitable tolling. And while Tellez-Muro argues that a removal order
based upon a vacated conviction is “illegal ab initio,” this argument is inapposite
because the agency’s removal order was never premised on the vacated conviction.
2. The BIA did not commit legal or constitutional error in determining
that Tellez-Muro failed to establish prima facie eligibility for cancellation of
removal. The agency set forth the proper standard for eligibility, noting that a
conviction for an offense described in 8 U.S.C. § 1182(a)(2), § 1227(a)(2), or §
1227(a)(3) disqualifies Tellez-Muro from relief. See 8 U.S.C. § 1229b(b)(1)(C).
Moreover, the agency properly noted that in a motion to reopen, Tellez-Muro need

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only show a “reasonable likelihood” of success on the merits. See Tadevosyan v.
Holder, 743 F.3d 1250, 1254–55 (9th Cir. 2014). The BIA’s decision does not
suggest that the agency ignored the possibility that a marijuana conviction for
simple possession of less than 30 grams would be subject to an exception, see 8
U.S.C. 1227(a)(2)(B)(1), or eligible for a waiver, see 8 U.S.C. § 1182(h). Rather,
the agency concluded that the presence of Tellez-Muro’s 2001 marijuana
possession conviction on his criminal record and his corresponding failure to
“present[] sufficient evidence to establish that his 2001 conviction… does not
render him ineligible” undermined his prima facie case. This decision evinces no
legal error.
Moreover, contrary to Tellez-Muro’s suggestion that the agency ignored the
evidence he submitted, the BIA “considered the respondent’s evidence” but found
it insufficient. And while Tellez-Muro argues that the BIA engaged in improper
factfinding, the BIA’s decision did not weigh evidence or evaluate credibility. See
Tadevosyan, 743 F.3d at 1256.
PETITION FOR REVIEW DENIED.

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