Jesus Garcia v. MERRICK B. GARLAND, Attorney General

NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
JESUS GARCIA,
Petitioner,
v.
MERRICK B. GARLAND, Attorney
General,
Respondent.
No. 21-70236
Agency No. A076-369-748
MEMORANDUM*
On Petition for Review of an Order of the
Board of Immigration Appeals
Submitted April 17, 2023**
Before: CLIFTON, R. NELSON, and BRESS, Circuit Judges.
Jesus Garcia, a native and citizen of Mexico, petitions pro se 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 agency’s denial of a motion to reopen, and we review de
* 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
APR 21 2023
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS

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novo questions of law, including claims of due process violations due to ineffective
assistance of counsel. Mohammed v. Gonzales, 400 F.3d 785, 791-92 (9th Cir.
2005). We deny in part and dismiss in part the petition for review.
The BIA did not abuse its discretion in denying Garcia’s third motion to
reopen as numerically barred and untimely, where it was filed over 22 years after
the final removal order, and Garcia has not established changed country conditions
in Mexico to qualify for an exception to the filing deadline. See 8 U.S.C.
§ 1229a(c)(7)(A) (only one motion to reopen allowed), (c)(7)(C)(i) (motion to
reopen must be filed within ninety days of the final removal order); 8 C.F.R.
§ 1003.2(c)(3) (exceptions); see also Toufighi v. Mukasey, 538 F.3d 988, 996-97
(9th Cir. 2008) (movant must produce material evidence that conditions in country
of nationality had changed).
The BIA did not abuse its discretion in denying petitioner’s motion to
reopen based on ineffective assistance of counsel where Garcia did not comply
with the procedural requirements set forth in Matter of Lozada, 19 I. & N. Dec.
637 (BIA 1988), and the ineffective assistance alleged is not plain on the face of
the record. See Tamang v. Holder, 598 F.3d 1083, 1090-91 (9th Cir. 2010). To the
extent Garcia raises a new ineffective assistance of counsel claim regarding
another attorney in his opening brief, we lack jurisdiction to consider it. See
Barron v. Ashcroft, 358 F.3d 674, 677-78 (9th Cir. 2004) (court lacks jurisdiction

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to review claims not presented to the agency). In light of this dispositive
determination, we need not reach Garcia’s remaining contentions as to whether he
was prejudiced by his former counsel’s assistance. See Simeonov v. Ashcroft, 371
F.3d 532, 538 (9th Cir. 2004) (courts and agencies are not required to decide issues
unnecessary to the results they reach).
We generally lack jurisdiction to review the BIA’s decision not to reopen
proceedings sua sponte. See Lona v. Barr, 958 F.3d 1225, 1227 (9th Cir. 2020)
(denial of sua sponte reopening is committed to agency discretion and
unreviewable).
The temporary stay of removal remains in place until the mandate issues.
PETITION FOR REVIEW DENIED in part; DISMISSED in part.

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