Franklin Arochac-Garcia v. MERRICK B. GARLAND, Attorney General

NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
FRANKLIN A ROCHAC-GARCIA,
Petitioner,
v.
MERRICK B. GARLAND, Attorney
General,
Respondent.
No. 22-1943
Agency No.
A201-429-072
MEMORANDUM*
On Petition for Review of an Order of the
Board of Immigration Appeals
Submitted October 10, 2023**
Before: S.R. THOMAS, McKEOWN, and HURWITZ, Circuit Judges.
Franklin A Rochac-Garcia, a native and citizen of El Salvador, petitions for
review of the Board of Immigration Appeals’ (“BIA”) order denying his motion to
reopen removal proceedings. We have jurisdiction under 8 U.S.C. § 1252. We
* 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
OCT 19 2023
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS

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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 the petition for review.
The BIA did not abuse its discretion in denying the untimely motion to
reopen where Rochac-Garcia failed to establish prima facie eligibility for relief.
See Ramirez-Munoz v. Lynch, 816 F.3d 1226, 1228 (9th Cir. 2016) (BIA may deny
a motion to reopen for failure to establish prima facie eligibility for the relief
sought); see also Bhasin v. Gonzales, 423 F.3d 977, 984 (9th Cir. 2005) (“An
applicant must demonstrate that the new evidence, when considered together with
the evidence presented at the original hearing, would establish prima facie
eligibility for the relief sought.”).
Rochac-Garcia’s contentions regarding a new proposed particular social
group and political opinion are not properly before the court because he failed to
raise them before the BIA. See 8 U.S.C. § 1252(d)(1) (exhaustion of
administrative remedies required); see also Santos-Zacaria v. Garland, 598 U.S.
411, 417-19 (2023) (section 1252(d)(1) is a non-jurisdictional claim-processing
rule).
We reject Rochac-Garcia’s conclusory contention that the BIA erred in
deeming his request for a stay of removal moot.
The temporary stay of removal remains in place until the mandate

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issues. The motion for a stay of removal is otherwise denied.
PETITION FOR REVIEW DENIED.

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