Anel Barajas-Rios v. MERRICK B. GARLAND, Attorney General

NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
ANEL BARAJAS-RIOS,
Petitioner,
v.
MERRICK B. GARLAND, Attorney
General,
Respondent.
No. 20-71179
Agency No. A097-734-728
MEMORANDUM*
On Petition for Review of an Order of the
Board of Immigration Appeals
Submitted May 3, 2021**
Portland, Oregon
Before: W. FLETCHER, BEA, and FRIEDLAND, Circuit Judges.
Anel Barajas-Rios, a Mexican native and citizen, petitions for review of the
Board of Immigration Appeals’ (“BIA”) denial of her motion to reopen removal
proceedings, which was filed nearly ten years after the BIA dismissed her appeal.
FILED
MAY 6 2021
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).

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We have jurisdiction under 8 U.S.C. § 1252 and we deny the petition in part and
dismiss it in part.
First, we need not decide whether the BIA abused its discretion in deeming
Barajas-Rios’ motion untimely. The BIA also denied her motion because she was
not eligible for the relief she sought. Najmabadi v. Holder, 597 F.3d 983, 986 (9th
Cir. 2010) (explaining that the BIA may deny a motion to reopen where the
applicant has “fail[ed] to establish a prima facie case for the relief sought” (quoting
INS v. Doherty, 502 U.S. 314, 323 (1992))). Barajas-Rios “lacked the requisite
five years as a lawful permanent resident at the time of the [immigration judge’s
2008] decision,” and the BIA’s 2009 affirmance of that decision, and was therefore
ineligible for cancellation of removal under 8 U.S.C. § 1229b(a). Because Barajas-
Rios did not challenge this alternative basis for the BIA’s decision, we deny her
petition as to this issue. See Abovian v. INS, 219 F.3d 972, 979 (9th Cir. 2000)
(noting that remand is unnecessary where the BIA has provided an adequate
alternative basis for its decision).
Second, we lack jurisdiction to review the BIA’s decision not to sua sponte
reopen the proceedings because the BIA considered the factors raised in Barajas-
Rios’ motion, and no other legal or constitutional error has been alleged. See
Menendez-Gonzalez v. Barr, 929 F.3d 1113, 1115 (9th Cir. 2019).
2

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Petition DENIED in part and DISMISSED in part.
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