Javier Herrera-Castaneda v. MERRICK B. GARLAND, Attorney General

NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
JAVIER HERRERA-CASTANEDA,
Petitioner,
v.
MERRICK B. GARLAND, Attorney
General,
Respondent.
No. 17-72755
Agency No. A095-723-057
MEMORANDUM*
On Petition for Review of an Order of the
Board of Immigration Appeals
Submitted December 8, 2022**
Pasadena, California
Before: R. NELSON, BADE, and FORREST, Circuit Judges.
Petitioner Javier Herrera-Castaneda, a native and citizen of Mexico, petitions
for review of the Board of Immigration Appeals’ (BIA) denial of his second
motion to reopen proceedings. We have jurisdiction under 8 U.S.C. § 1252.
Although this appeal is taken from Herrera-Castaneda’s second motion to
* 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 12 2022
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS

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reopen, the entirety of Herrera-Castaneda’s briefing addresses the BIA’s denial of
his first motion to reopen. The issues surrounding the denial of that motion to
reopen have already been the subject of a petition for review before this court,
which was denied. See Herrera-Castaneda v. Sessions, 678 F. App’x 514, 514–15
(9th Cir. 2017). To the extent Herrera-Castaneda intended to appeal the BIA’s
denial of his first motion to reopen, that request is both untimely under 8 U.S.C.
§ 1252(b)(1) and foreclosed by our prior decision in 2017.
As to the second motion to reopen, Herrera-Castaneda’s petition is deficient
on its face. The BIA denied Herrera-Castaneda’s second motion to reopen because
he failed to present sufficient evidence to show that the harm he might experience
upon returning to Mexico would be “on account of” his inclusion in a particular
social group, he failed to demonstrate that it is more likely than not that he would
be tortured in Mexico by or with the acquiescence of the government, and there
were no exceptional circumstances warranting sua sponte reopening. Because
Herrera-Castaneda’s briefing exclusively discusses the bases for the BIA’s
decision on his first motion to reopen rather than his second, Herrera-Castaneda
fails to argue, much less demonstrate, that the BIA’s denial of his second motion to
reopen was “arbitrary, irrational, or contrary to law.” See, e.g., Cui v. Garland, 13
F.4th 991, 995–96 (9th Cir. 2021) (“The BIA only abuses its discretion [in denying
a motion to reopen] when the decision is arbitrary, irrational or contrary to law.”

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(internal quotation marks and citation omitted)). Accordingly, we deny the petition
for review.
PETITION FOR REVIEW DENIED.

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