Daniel Banuelos-Hernandez v. Merrick Garland

NOT FOR PUBLICATION FILED UNITED STATES COURT OF APPEALS FEB 10 2023 MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS FOR THE NINTH CIRCUIT DANIEL BANUELOS-HERNANDEZ, No. 17-72730 AKA Daniel Banueloshernande, AKA Daniel Hernandez Banuelos, Agency No. A205-319-846 Petitioner, MEMORANDUM* v. MERRICK B. GARLAND, Attorney General, Respondent. On Petition for Review of an Order of the Board of Immigration Appeals Submitted February 7, 2023** Pasadena, California Before: BOGGS,*** IKUTA, and DESAI, Circuit Judges. Petitioner Daniel Banuelos-Hernandez, a native and citizen of Mexico, * 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 Danny J. Boggs, United States Circuit Judge for the U.S. Court of Appeals for the Sixth Circuit, sitting by designation. petitions for review of the Board of Immigration Appeals’ (“BIA”) order denying his untimely motion to reopen removal proceedings. Mr. Banuelos-Hernandez seeks asylum, withholding of removal, and withholding of removal under the Convention Against Torture (“CAT”). We have jurisdiction under 8 U.S.C. § 1252. For the following reasons, we deny the petition. The court reviews the BIA’s denial of a motion to reopen for an abuse of discretion. Cui v. Garland, 13 F.4th 991, 995 (9th Cir. 2021). An agency abuses its discretion only if it acts arbitrarily, irrationally, or contrary to the law. Id. at 995–96. We review the BIA’s factual findings, including its determinations that an individual is not eligible for asylum, withholding of removal, or withholding under the CAT, for substantial evidence. Sharma v. Garland, 9 F.4th 1052, 1060, 1067 (9th Cir. 2021). Under that standard, “administrative findings of fact are conclusive unless any reasonable adjudicator would be compelled to conclude to the contrary.” Zehatye v. Gonzales, 453 F.3d 1182, 1185 (9th Cir. 2006) (quoting 8 U.S.C. § 1252(b)(4)(B)). When the BIA relies on the immigration judge’s (“IJ”) reasoning, we review both decisions. Hernandez v. Garland, 47 F.4th 908, 912 (9th Cir. 2022). The court’s review is limited to the grounds relied upon by the agency. Najmabadi v. Holder, 597 F.3d 983, 986 (9th Cir. 2010). Because substantial evidence supports the BIA’s factual findings and the BIA did not abuse its discretion in rejecting Mr. Banuelos-Hernandez’s motion to reopen, we deny his petition for review. 2 Mr. Banuelos-Hernandez asserts that changed country conditions justify an exception to the timeliness requirements for his motion to reopen and asylum application. Typically, a motion to reopen must be filed “within 90 days of the date of entry of a final administrative order of removal.” 8 C.F.R. 1003.23(b)(1). Mr. Banuelos-Hernandez filed his motion to reopen sixteen months late. To qualify for an exception to the timeliness requirements, a petitioner must present evidence demonstrating material changes to country conditions arising in the country to which removal has been ordered, that such evidence was not available and could not have been discovered or presented at the previous proceeding …

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