Aracely Iraheta-De Perez v. MERRICK B. GARLAND, Attorney General

NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
ARACELY IRAHETA-DE PEREZ,
Petitioner,
v.
MERRICK B. GARLAND, Attorney
General,
Respondent.
No. 17-73147
Agency No. A094-803-552
MEMORANDUM*
On Petition for Review of an Order of the
Board of Immigration Appeals
Submitted November 15, 2022**
San Francisco, California
Before: RAWLINSON and HURWITZ, Circuit Judges, and CARDONE,***
District Judge.
FILED
DEC 7 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 Kathleen Cardone, United States District Judge for the
Western District of Texas, sitting by designation.

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Aracely Iraheta-De Perez (Iraheta-De Perez), a native and citizen of El
Salvador, petitions for review of a decision from the Board of Immigration
Appeals (BIA) denying her motion to reopen or reconsider the BIA’s prior
dismissal of her appeal from the order of an Immigration Judge (IJ) denying
asylum, withholding of removal, and protection under the Convention Against
Torture (CAT).1
We have jurisdiction to review the denial of a motion to reconsider or reopen
under 8 U.S.C. § 1252(a)(1). We review the denial of a motion to reconsider or to
reopen for an abuse of discretion. See Lona v. Barr, 958 F.3d 1225, 1229 (9th Cir.
2020) (reconsideration); Najmabadi v. Holder, 597 F.3d 983, 986 (9th Cir. 2010)
(reopening). We review “purely legal questions” de novo, and review factual
findings for substantial evidence. Bonilla v. Lynch, 840 F.3d 575, 581 (9th Cir.
2016), as amended; Hernandez-Ortiz v. Garland, 32 F.4th 794, 800 (9th Cir.
2022).
1. We are not persuaded by Iraheta-De Perez’s argument that the IJ lacked
jurisdiction. A Notice To Appear that omits the date and time of removal
1 Iraheta-De Perez arguably waived review of the BIA’s denial of her motion
to reopen or reconsider by failing to address the denial in her Opening Brief.
However, we exercise our discretion to review the denial. See Mamouzian v.
Ashcroft, 390 F.3d 1129, 1136 n.4 (9th Cir. 2004).
2

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proceedings “does not deprive the immigration court of subject matter jurisdiction”
when a subsequent Notice of Hearing provides the omitted information. United
States v Bastide-Hernandez, 39 F.4th 1187, 1188, 1193 (9th Cir. 2022) (en banc).
2. “When the BIA denies sua sponte reopening or reconsideration as a
matter of discretion, we lack jurisdiction to review that decision, although we
retain jurisdiction to review the denial of sua sponte reopening for legal or
constitutional error. . . .” Rubalcaba v. Garland, 998 F.3d 1031, 1035 (9th Cir.
2021) (citation and internal quotation marks omitted). In this case, because the
denial of sua sponte reconsideration or reopening was discretionary and not on any
legal or constitutional basis, we lack jurisdiction to review that denial. See id.
3. The BIA did not abuse its discretion by denying the motion as untimely.
A motion to reconsider “must be filed within thirty days of the date of entry of the
[removal] order.” Goulart v. Garland, 18 F.4th 653, 654 (9th Cir. 2021) (citation
omitted). A petitioner may file a motion to reopen within ninety days of the final
removal order. See Agonafer v. Sessions, 859 F.3d 1198, 1203 (9th Cir. 2017).
The BIA’s decision was entered on November 4, 2013, and Iraheta-De Perez filed
her motion to reconsider or reopen on May 4, 2017. Therefore, the BIA did not
abuse its discretion by denying the motion as untimely. See Singh v. Gonzales, 491
F.3d 1090, 1097 (9th Cir. 2007).
3

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4. The BIA determined that Iraheta-De Perez failed to establish changed
circumstances to excuse the untimely filing of the motion. One of the ways to
excuse untimeliness on the basis of changed circumstances is to produce
previously unavailable evidence of changed country conditions. See Agonafer, 859
F.3d at 1203-04.
The BIA determined that the affidavits submitted by Iraheta-De Perez did
not reflect a material change in country conditions. The affidavits discussed
threats from gang members; that evidence was not “qualitatively different” from
evidence offered by Iraheta-De Perez in support of her initial application for relief.
Id. at 1204.
The BIA also determined that Iraheta-De Perez “has not established that the
harm she fears would be on account of one of the protected grounds.” Iraheta-De
Perez stated that she was a member of “the group of women having to walk the
gang-blockaded streets of El Salvador.” However, Iraheta-De Perez failed to
present evidence that her membership in the proffered group bore a nexus to the
harm she fears. See id. The BIA’s determination that Iraheta-De Perez failed to
establish changed circumstances was supported by substantial evidence. See
Najmabadi, 597 F.3d at 992.
PETITION DENIED in part and DISMISSED in part.
4

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