Opinion
18-72721
01-06-2023
ALBERTO NORIEGA-PEREZ, Petitioner, v. MERRICK B. GARLAND, Attorney General,
NOT FOR PUBLICATION
Submitted January 6, 2023 San Francisco, California
This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3.
On Petition for Review of an Order of the Board of Immigration Appeals Agency No. A011-384-206
Before: FRIEDLAND, BADE, and KOH, Circuit Judges.
MEMORANDUM
Alberto Noriega-Perez, a native and citizen of Mexico, petitions for review of the Board of Immigration Appeals' ("BIA") order denying his fourth 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 or reconsider. Mohammed v. Gonzales, 400 F.3d 785, 791 (9th Cir. 2005). We deny in part and dismiss in part the petition for review.
Noriega-Perez does not present any challenge to the BIA's dispositive determination that his motion, whether construed as a motion to reopen or to reconsider, was time and number barred. See 8 U.S.C. § 1229a(c)(7)(A); 8 C.F.R. § 1003.2(c)(2); see also 8 U.S.C. § 1229a(c)(6)(A) &(B); 8 C.F.R. § 1003.2(b)(2). Additionally, he does not renew his claim of being a United States citizen. Noriega-Perez has, therefore, waived or abandoned such claims. See Lopez-Vasquez v. Holder, 706 F.3d 1072, 1079-80 (9th Cir. 2013) (issues not specifically raised and argued in an opening brief are waived).
We lack jurisdiction to review the BIA's decision not to reopen proceedings sua sponte because Noriega-Perez does not argue that a legal or constitutional error underlies the BIA's determination. 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.").
In his opening brief and in a separate motion, Noriega-Perez challenges the validity of his conviction underlying his order of removal. We have already rejected such challenges to his conviction. See United States v. Noriega-Perez, 670 F.3d 1033 (9th Cir. 2012) (denying direct appeal); United States v. Noriega-Perez, 467 Fed.Appx. 698 (9th Cir. 2012) (rejecting due process claims and holding that there was sufficient evidence to support convictions). Therefore, we do not reconsider this argument. See Paulo v. Holder, 669 F.3d 911, 917 (9th Cir. 2011). We deny Noriega-Perez's motion, docket 13, to vacate his conviction and sentence.
PETITION DENIED in part and DISMISSED in part.
The panel unanimously concludes this case is suitable for decision without oral argument. See Fed. R. App. P. 34(a)(2).