Marvin Geovanny Cisneros v. MERRICK B. GARLAND, Attorney General

NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
MARVIN GEOVANNY CISNEROS,
Petitioner,
v.
MERRICK B. GARLAND, Attorney
General,
Respondent.
No. 20-72462
Agency No. A094-304-017
MEMORANDUM*
On Petition for Review of an Order of the
Board of Immigration Appeals
Submitted February 14, 2023**
Before: FERNANDEZ, FRIEDLAND, and H.A. Thomas, Circuit Judges.
Marvin Geovanny Cisneros, a native and citizen of El Salvador, petitions pro
se for review of the Board of Immigration Appeals’ (“BIA”) order dismissing his
appeal from an immigration judge’s (“IJ”) decision denying his motion to reopen
removal proceedings. Our jurisdiction is governed by 8 U.S.C. § 1252. We review
* 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
FEB 22 2023
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS

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for abuse of discretion the agency’s denial of a motion to reopen, and we review de
novo questions of law, including claims of due process violations due to ineffective
assistance of counsel. Mohammed v. Gonzales, 400 F.3d 785, 791-92 (9th Cir.
2005). We deny in part and dismiss in part the petition for review.
The agency did not abuse its discretion in denying petitioner’s motion to
reopen as untimely where it was filed 18 months after the final removal order, and
petitioner has not established that any statutory or regulatory exception applies.
See 8 U.S.C. § 1229a(c)(7)(C)(i) (motion to reopen must be filed within ninety
days of the final removal order); 8 C.F.R. § 1003.2(c)(3) (listing exceptions).
The agency did not abuse its discretion in declining to reopen based on
ineffective assistance of counsel where Cisneros failed to show prejudice from the
performance of former counsel. See Mohammed, 400 F.3d at 793-94 (prejudice
shown where counsel’s performance was so inadequate it may have affected the
outcome).
We lack jurisdiction to review the agency’s decision not to reopen removal
proceedings sua sponte. See Bonilla v. Lynch, 840 F.3d 575, 588 (9th Cir. 2016)
(“[T]his court has jurisdiction to review Board decisions denying sua sponte
reopening for the limited purpose of reviewing the reasoning behind the decisions
for legal or constitutional error.”).
We do not consider Cisneros’ contentions regarding introduction of his

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mental health records, mistreatment in detention, and reconsideration of his
applications for asylum, withholding of removal, and protection under the
Convention Against Torture because the BIA did not decide the issue, see
Santiago-Rodriguez v. Holder, 657 F.3d 820, 829 (9th Cir. 2011) (review limited
to the grounds relied on by the BIA), and the BIA did not err in declining to
consider the claims where raised for the first time on appeal, see Honcharov v.
Barr, 924 F.3d 1293, 1297 (9th Cir. 2019).
PETITION FOR REVIEW DENIED in part; DISMISSED in part.

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