Antelmo Rodriguez-Hernandez v. MERRICK B. GARLAND, Attorney General

NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
ANTELMO RODRIGUEZ-HERNANDEZ,
Petitioner,
v.
MERRICK B. GARLAND, Attorney
General,
Respondent.
No. 16-71366
Agency No. A079-530-326
MEMORANDUM*
On Petition for Review of an Order of the
Board of Immigration Appeals
Submitted February 15, 2022**
Before: FERNANDEZ, TASHIMA, and FRIEDLAND, Circuit Judges.
Antelmo Rodriguez-Hernandez, a native and citizen of Mexico, 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
review for abuse of discretion the denial of a motion to reopen. Mohammed v.
* 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 23 2022
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS

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2 16-71366
Gonzales, 400 F.3d 785, 791 (9th Cir. 2005). We review de novo claims of due
process violations in immigration proceedings. Simeonov v. Ashcroft, 371 F.3d
532, 535 (9th Cir. 2004). We deny the petition for review.
The BIA did not abuse its discretion in denying Rodriguez-Hernandez’s
motion to reopen as untimely where the motion was filed more than 10 years after
the final order of removal, and where Rodriguez-Hernandez failed to demonstrate a
material change in country conditions in Mexico to qualify for the regulatory
exception to the time limitation for filing a motion to reopen. See 8 C.F.R.
§§ 1003.2(c)(2), (3)(ii); Najmabadi v. Holder, 597 F.3d 983, 990-91 (9th Cir.
2010) (BIA did not abuse its discretion in denying motion to reopen where
petitioner failed to submit material evidence of qualitatively different country
conditions).
Rodriguez-Hernandez’s contentions that the BIA violated his right to due
process fails. See Lata v. INS, 204 F.3d 1241, 1246 (9th Cir. 2000) (error and
substantial prejudice are required to prevail on a due process claim); see also
Najmabadi, 597 F.3d at 990 (the agency adequately considered evidence and
sufficiently announced its decision).
We do not consider the materials Rodriguez-Hernandez references in his
opening brief that are not part of the administrative record. See Fisher v. INS, 79

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3 16-71366
F.3d 955, 963-64 (9th Cir. 1996) (en banc). Rodriguez-Hernandez’s request,
raised in his opening brief, to take judicial notice is denied. See id.
The temporary stay of removal remains in place until issuance of the
mandate.
PETITION FOR REVIEW DENIED.

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