NOT FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

JOSE LUIS LOPEZ-GUEVARA, 

Petitioner, 

 v. 

MERRICK GARLAND, Attorney General, 

Respondent.

No. 22-21

Agency No. A022-317-477

MEMORANDUM*

On Petition for Review of an Order of the

Board of Immigration Appeals

Submitted April 17, 2023 **

Pasadena, California

Before: WARDLAW and H.A. THOMAS, Circuit Judges, and ROSENTHAL,***

District Judge.

Jose Luis Lopez-Guevara, a native and citizen of El Salvador, seeks review of 

a Board of Immigration Appeals (“BIA”) order denying his untimely 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).

*** The Honorable Lee H. Rosenthal, United States District Judge for the 

Southern District of Texas, sitting by designation.

FILED

APR 19 2023

MOLLY C. DWYER, CLERK

U.S. COURT OF APPEALS

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reopen his removal proceedings. We have jurisdiction under 8 U.S.C. § 1252.

Bonilla v. Lynch, 840 F.3d 575, 581 (9th Cir. 2016). “We review the Board’s denial 

of a motion to reopen for abuse of discretion, but review purely legal questions de 

novo.” Id. The BIA abuses its discretion when its decision is arbitrary, irrational, 

or contrary to law. Martinez-Hernandez v. Holder, 778 F.3d 1086, 1088 (9th Cir. 

2015). Finding no abuse of discretion or legal error, we deny the petition for review. 

Lopez-Guevara first entered the United States in 1970. He departed the 

United States on August 29, 1978, only to reenter the next day. In September 1981, 

Lopez-Guevara was convicted in the Superior Court of California of second-degree 

murder. He remained in prison until February 2019, when he was released on parole. 

Shortly after his release, the Department of Homeland Security initiated removal 

proceedings against Lopez-Guevara.

Around the same time, Lopez-Guevara filed an application for asylum, 

withholding of removal, and protection under the Convention Against Torture

(“CAT”). An Immigration Judge denied Lopez-Guevara’s application on April 7, 

2020. The order specified that Lopez-Guevara had until May 7, 2020, to appeal. 

Lopez-Guevara filed a notice of appeal on April 17, 2020, while in 

immigration custody. On April 24, 2020, the BIA rejected the notice of appeal on 

the basis that Lopez-Guevara had failed to either pay the filing fee or submit a feewaiver request. The rejection letter stated that Lopez-Guevara could correct the error 

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and resubmit the appeal but noted, in all caps, that “THIS DOES NOT EXTEND 

THE ORIGINAL STRICT 30-DAY TIME LIMIT within which you must file your 

appeal.” 

On May 5, 2020, two days before the deadline to appeal expired, LopezGuevara resubmitted his appeal, attaching a fee-waiver request form. On May 7, 

2020 (the deadline to appeal), the BIA again rejected the appeal because LopezGuevara had submitted an incorrect fee-waiver form. The notice of rejection 

attached the correct form and stated that “[a]ny corrected appeal resubmitted after 

the 30-day time limit must be filed within 15 days of the date of this notice.” The 

notice was mailed to the Immigration and Customs Enforcement Detention Center 

where Lopez-Guevara had been detained until May 6, 2020, the day before the notice 

was sent. 

On May 21, 2020, Lopez-Guevara filed a change of address form, updating 

his address to reflect his release from custody. On July 7, 2020, he submitted his

appeal for a third time, using the same incorrect fee-waiver form he had attached to 

his second appeal. The BIA mailed Lopez two identical letters, one dated August 

14, 2020, and one dated August 26, 2020, to his correct address, rejecting his third 

appeal for failure to include the correct fee-waiver form. The letters again stated 

that “[a]ny corrected appeal resubmitted after the 30-day time limit must be filed 

within 15 days of the date of this notice.” 

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Lopez-Guevara sent in a fourth appeal, with the correct fee-waiver form

attached, on September 1, 2020. The BIA summarily dismissed this appeal as 

untimely because it should have been filed by May 7, 2020. Lopez-Guevara filed a 

motion for reconsideration.

The BIA found that Lopez-Guevara’s statements were not supported by the 

evidence. The BIA did not abuse its discretion in making this finding. Although 

Lopez-Guevara initially blamed the delay in his appeal on a custody officer who 

provided a wrong form and on problems delivering and sending mail at the detention 

center, the BIA noted that he later recanted both those accusations and conceded that 

ICE did try to file his Notice of Appeal twice. The BIA also found that LopezGuevara did not take appropriate steps to inform the BIA of his change in address 

after his release from immigration custody. The BIA explained that under 8 C.F.R. 

§ 1003.15(d)(2), Lopez-Guevara was “required to provide written notice of a change

in address to the Board within 5 days, but [he] did not update his address with the 

Board until more than two weeks after his release from DHS custody.” The BIA 

noted that although Lopez-Guevara had claimed that he had tried to update his 

address sooner, he failed to provide “evidence in support of this contention, such as 

an affidavit from the respondent or the respondent’s son.” 

Lopez-Guevara has not identified an error of law or fact in the BIA’s decision 

to deny review of the untimely appeal. 8 U.S.C. § 1229a(c)(6)(C); 8 C.F.R. 

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§ 1003.2(b)(1). Lopez-Guevara argues that the BIA deprived him of due process 

because it refused to consider the appeals he filed with an improper fee-waiver form, 

even though the fee-waiver form he initially used strongly resembled the proper 

form. But Lopez-Guevara has not argued that the BIA’s failure to consider his 

appeal unfairly prejudiced him, as required to make out a due process claim. Zetino 

v. Holder, 622 F.3d 1007, 1013 (9th Cir. 2010). Lopez-Guevara’s due process claim 

has been forfeited for lack of substantial argument. See Cui v. Garland, 13 F.4th 

991, 999 n.6 (9th Cir. 2021). Additionally, the incorrect form Lopez-Guevara 

initially submitted before his appeal deadline expired expressly directs filers that, if 

they “wish to request a fee waiver for an appeal to the [BIA], [they] must use a Form 

EOIR-26A, Appeal Fee Waiver Request.” This instruction put Lopez-Guevara on 

notice that he needed to use a different form in April 2020, well before his appeal 

deadline expired. 

Finally, this Court lacks jurisdiction to review the BIA’s decision not to 

exercise its self-certification authority. “[T]he decision of whether to certify a claim 

under 8 C.F.R. § 1003.1(c) is committed to agency discretion.” Idrees v. Barr, 923 

F.3d 539, 543 (9th Cir. 2019). Because the BIA did not abuse its discretion or violate 

the Due Process Clause in denying Lopez-Guevara’s motion for reconsideration, and 

we do not have jurisdiction to review the remainder of the petition, the petition is 

DISMISSED in part and DENIED in part.

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