Lino Bernal Pena v. MERRICK B. GARLAND, Attorney General

NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
LINO BERNAL PENA,
Petitioner,
v.
MERRICK B. GARLAND, Attorney
General,
Respondent.
No. 21-70532
Agency No. A090-184-297
MEMORANDUM*
On Petition for Review of an Order of the
Board of Immigration Appeals
Submitted December 14, 2021**
Before: WALLACE, CLIFTON, and HURWITZ, Circuit Judges.
Lino Bernal Pena, a native and citizen of Mexico, petitions pro se for review
of the Board of Immigration Appeals’ (“BIA”) order summarily dismissing his
appeal from an immigration judge’s (“IJ”) decision denying his application for
asylum, withholding of removal, and relief under the Convention Against Torture.
* 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
DEC 21 2021
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS

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Our jurisdiction is governed by 8 U.S.C. § 1252. We review for abuse of
discretion the BIA’s decision to summarily dismiss an appeal. Singh v. Gonzales,
416 F.3d 1006, 1009 (9th Cir. 2005). We deny in part and dismiss in part the
petition for review.
The BIA did not abuse its discretion in summarily dismissing Bernal Pena’s
appeal as untimely where it was filed past the deadline and Bernal Pena offered no
explanation for the delay to the BIA. See 8 C.F.R. §§ 1003.1(d)(2)(i)(G),
1003.38(b)-(c). We lack jurisdiction to consider Bernal Pena’s explanations for the
delay raised in the opening brief that were not raised to the BIA. See Barron v.
Ashcroft, 358 F.3d 674, 677-78 (9th Cir. 2004) (court lacks jurisdiction to review
issues or claims not presented below).
To the extent Bernal Pena contends for the first time in his opening brief that
the BIA erred by failing to exercise its discretion to accept his untimely appeal, we
also lack jurisdiction to consider the contention. See id. We further lack
jurisdiction to consider Bernal Pena’s contentions as to the validity of his
underlying criminal conviction, the ground of removability sustained by the IJ,
receipt of the Notice to Appear, ineffective assistance of counsel before the IJ, and
violations of his right to due process before the IJ. See id.
We do not consider newly raised assertions of fact and materials attached to
Bernal Pena’s opening brief that are not part of the administrative record, including

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references to a motion to reopen filed with the BIA after the entry of the final order
on review. See Fisher v. INS, 79 F.3d 955, 963 (9th Cir. 1996) (en banc).
PETITION FOR REVIEW DENIED in part; DISMISSED in part.

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