Gustavo Alvarez v. MERRICK B. GARLAND, Attorney General

NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
GUSTAVO ALVAREZ,
Petitioner,
v.
MERRICK B. GARLAND, Attorney
General,
Respondent.
No. 21-901
Agency No.
A070-780-026
MEMORANDUM*
On Petition for Review of an Order of the
Board of Immigration Appeals
Submitted May 16, 2023**
Before: BENNETT, MILLER, and VANDYKE, Circuit Judges.
Gustavo Alvarez, a native and citizen of Guatemala, 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 denial of a motion to reopen.
Najmabadi v. Holder, 597 F.3d 983, 986 (9th Cir. 2010). We deny in part and
* 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
MAY 30 2023
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS

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dismiss in part the petition for review.
The BIA did not abuse its discretion in denying Alvarez’s motion to
reopen as untimely, where it was filed over twenty-five years after the final
removal order, see 8 U.S.C. § 1229a(c)(7)(C)(i) (motion to reopen must be filed
within ninety days of the final removal order), and Alvarez has not established
changed country conditions in Guatemala to qualify for an exception to the
filing deadline, see 8 U.S.C. § 1229a(c)(7)(C)(ii); 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). We reject as unsupported by
the record Alvarez’s contention that the BIA erred in relying on invalid case
law.
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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