NOT FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

PEDRO ROCHA-SALDANA,

Petitioner, 

 v. 

MERRICK B. GARLAND, Attorney 

General,

Respondent.

No. 23-1302

Agency No. 

A216-434-322

MEMORANDUM*

PEDRO ROCHA-SALDANA,

Petitioner, 

 v. 

MERRICK B. GARLAND, Attorney 

General,

Respondent.

No. 24-732

Agency No. 

A216-434-322

On Petition for Review of an Order of the

Board of Immigration Appeals

* This disposition is not appropriate for publication and is not precedent 

except as provided by Ninth Circuit Rule 36-3.

FILED

MAY 2 2024

MOLLY C. DWYER, CLERK

U.S. COURT OF APPEALS
2 

Argued and Submitted April 8, 2024

San Diego, California

Before: WALLACE, McKEOWN, and OWENS, Circuit Judges.

In Case No. 23-1302, Petitioner Pedro Rocha-Saldana petitions for review of 

the Board of Immigration Appeals’ (BIA) order. The BIA’s order affirmed the 

Immigration Judge’s (IJ) denial of his application for cancellation of removal and 

post-conclusion voluntary departure under the Immigration and Nationality Act 

(INA) §§ 240A(b) and 240B, respectively. In Case No. 24-732, Rocha-Saldana 

petitions for review of the BIA’s denial of his motions to reopen the case and to 

reconsider its prior decision. We consolidated the two cases pursuant to 8 U.S.C. 

§ 1252(b)(6). We have jurisdiction under 8 U.S.C. § 1252(a)(5). As the parties are 

familiar with the facts and procedural history, we do not recount them here. We 

deny the petitions.

“We review the BIA’s decision and those parts of the IJ’s decision that the 

BIA expressly adopted.” Umana-Escobar v. Garland, 69 F.4th 544, 550 (9th Cir. 

2023), citing Garcia v. Wilkinson, 988 F.3d 1136, 1142 (9th Cir. 2021). “We 

review the BIA’s legal determinations de novo, including whether the BIA applied 

the wrong legal standard.” Id., citing Garcia, 988 F.3d at 1142, 1146.

We review the denial of a motion to reopen and a motion to reconsider for 

abuse of discretion. Lara-Torres v. Ashcroft, 383 F.3d 968, 972 (9th Cir. 2004), 

amended sub nom. Lara-Torres v. Gonzales, 404 F.3d 1105 (9th Cir. 2005). “We 
3 

must uphold the [BIA’s] ruling ‘[u]nless [it] acted arbitrarily, irrationally, or 

contrary to law.’” Id. (last two alterations in original), quoting Lo v. Ashcroft, 341 

F.3d 934, 937 (9th Cir. 2003).

1. Case No. 23-1302. Rocha-Saldana primarily contends that the BIA 

erred in affirming the IJ’s denial of his application for cancellation of removal 

because the IJ’s decision neither complied with relevant regulatory requirements 

and BIA precedent nor sufficiently stated that the denial was on discretionary 

grounds. The government responds that Rocha-Saldana did not make these 

arguments before the BIA and has thus waived them under 8 U.S.C. § 1252(d)(1)’s 

exhaustion requirement. Rocha-Saldana cannot overcome his failure to abide by 

section 1252(d)(1)’s claim-processing rule given that the government has raised 

the issue. See Umana-Escobar, 69 F.4th at 550 (holding that exhaustion, although 

not jurisdictional, is a mandatory claim-processing rule when the government 

raises it). Accordingly, we conclude that Rocha-Saldana has waived his arguments

that the IJ’s order was procedurally deficient and not sufficiently clear as to its 

discretionary basis.

Rocha-Saldana’s other two arguments—that the BIA (i) impermissibly 

substituted its assessment of testimony for the IJ’s factual findings and (ii) cited an 

inapposite case when affirming the IJ’s discretionary denial—fail. The BIA 

reviews the IJ’s findings of fact under the “clearly erroneous” standard. 8 C.F.R. 
4 

§ 1003.1(d)(3)(i). In affirming the IJ’s discretionary denial of the application, the 

BIA cited the IJ’s factual findings made at the end of the hearing. It is of no 

moment that the BIA also cited Rocha-Saldana’s underlying deposition testimony, 

which the IJ relied upon in making his decision, in determining whether the IJ’s 

factual findings were clearly erroneous. Further, Rocha-Saldana’s argument that 

the BIA erroneously cited In re C-V-T-, 22 I. & N. Dec. 7 (BIA 1998), because it 

involved 8 U.S.C. § 1229b(a) rather than § 1229b(b)—the provision under which 

Rocha-Saldana brought his application for cancellation of removal—is not 

persuasive. Although In re C-V-T- involved a different statutory provision, the 

BIA’s discussion of the IJ’s ability to exercise discretion in that case equally 

applies here. Moreover, the difference in statutory eligibility under the provisions 

is not relevant where the IJ assumed that Rocha-Saldana met all the statutory 

requirements under § 1229b(b).

As for the IJ’s denial of post-conclusion voluntary departure, Rocha-Saldana 

argues that the BIA erred by conducting a de novo review. We disagree. “The 

[BIA] may review questions of law, discretion, and judgment and all other issues 

in appeals from decisions of immigration judges de novo.” 8 C.F.R. 

§ 1003.1(d)(3)(ii). Rocha-Saldana argued before the BIA that the IJ abused his 
5 

discretion in denying post-conclusion voluntary departure by misapplying the law. 

As such, de novo review by the BIA was proper.1

2. Case No. 24-732. The BIA is entitled to deny a motion to reopen the 

case if “the movant would not be entitled to the discretionary grant of relief which 

he sought.” Fonseca-Fonseca v. Garland, 76 F.4th 1176, 1180 (9th Cir. 2023), 

quoting Najmabadi v. Holder, 597 F.3d 983, 986 (9th Cir. 2010). In making that 

determination, the BIA must decide whether the new evidence “would likely 

change” the results of the case. Id. at 1183. Here, the BIA concluded that the new 

evidence, including Rocha-Saldana’s youngest son’s autism diagnosis and RochaSaldana’s representation that he paid certain taxes owed, would not likely change 

the IJ’s denial on discretionary grounds because Rocha-Saldana’s “adverse 

considerations outweigh[ed] his equities.” The BIA observed that the IJ was aware 

of Rocha-Saldana’s son’s health and behavior issues, including that he was 

possibly autistic, at the removal hearing. The BIA further determined that the new 

evidence indicating that Rocha-Saldana “purportedly” submitted tax returns for 

prior years and paid the owed taxes did not “materially change” the analysis. We 

conclude that the BIA did not abuse its discretion in denying Rocha-Saldana’s 

motion to reopen.

1 Rocha-Saldana’s argument that the IJ’s misapplication of the law requires a 

remand is without merit. We need not review that portion of the IJ’s denial 

because the BIA did not expressly adopt it. See Umana-Escobar, 69 F.4th at 550.
6 

As for the motion to reconsider, Rocha-Saldana contends that the BIA 

abused its discretion by not considering whether the 30-day deadline to file such 

motion should have been equitably tolled. However, Rocha-Saldana did not raise 

this argument before the BIA. Rather, he only argued that the BIA should exercise 

its sua sponte authority to reconsider its decision. Relying on Matter of J-J-, 21 I. 

& N. Dec. 976, 984 (BIA 1997), the BIA determined the fact that Rocha-Saldana 

worked diligently with his new counsel after the deadline to file the motion had 

passed did not constitute “an exceptional situation” warranting reconsideration. 

Rocha-Saldana presents no argument as to why the BIA erred in making this 

determination. We conclude that the BIA did not abuse its discretion in denying 

the motion reconsider.

PETITIONS DENIED.

2

2

In Case No. 24-732, we treat the government’s absence of a timely response 

to Rocha-Saldana’s Motion to Stay Removal, Dkt. 4, as a notice of non-opposition. 

See 9th Cir. Gen. Ord. 6.4(c)(5). The temporary stay of removal continues until 

the mandate issues unless the court orders otherwise. See id.