NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT

JOHN MBUGUA ,

Petitioner,

v. MERRICK B. GARLAND, Attorney General, Respondent. No. 22

- 1 500 Agency No. A 027

- 569

- 79 3

MEMORANDUM *

On Petition for Review of an Order of the Board of Immigration Appeals
Submitted December 4 , 2023 ** Pasadena , California
Before: WARDLAW and BUMATAY, Circuit Judges, and BENCIVENGO , District Judge

. ***
John Mbugua , a native and citizen of Ethiopia, petitions for review o f the Board of Immigration Appeals’ (“BIA”) order denying his motion to reopen removal

* 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 Cathy Ann Bencivengo , United States District Judge for the Southern District of California , sitting by designation. 

# FILED

DEC 6 2023
MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS2 22

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proceedings as untimely

. We have jurisdiction under 8 U.S.C. § 1252 (a)(1)

. We review the denial of a motion to reopen removal proceedings for abuse of discretio n.
See Agonafer v. Sessions , 859 F.3d 1198, 1203 (9 th Cir. 2017). W e deny the petition
for review in part and dismiss in part

. A motion to reopen removal proceedings must ordinarily be filed within 90 days of the final order of removal. 8 U.S.C. § 1229a(c)(7)(C)(i). A n exception to this limitation is if the petitioner demonstrates “changed country conditions” in the country to which he is to be removed

. Id. § 1229a(c)(7)(C)(ii). To prevail, the petitioner must “(1) produce evidence that conditions have changed in the country of removal; (2) demonstrate that the evidence is material; (3) show that the evidence was not available and could not have been discovered or presented at the previous hearing; and (4) demon strate that the new evidence, when considered together wit h the evidence presented at the original hearing, would establish prima facie eligibility for the relief sought.” Agonafer , 859 F.3d at 1204 (citing Toufighi v. Mukasey , 538 F.3d 988, 996 (9th Cir. 2008)). It is uncontested that Mbugua’s motion to reopen removal proceedings is untimely

— it was filed nearly 29 years after the BIA’s final
order of removal.
1. The BIA held that Mbugua fail ed to establish changed

- country conditions in his country of nationality

. A petitioner must apply for relief based on conditions arising “in the country of nationality or the country to which removal has been3 22

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ordered.” 8 U.S.C. § 1229a(c)(7)(C)(ii). As M bugua admitted in his prior immigration proceedings , Mbugua’s country of nationality is Ethiopia. Ethiopia is also his country of removal. Mbugua, however, provided evidence o f changed

country conditions in the country of Somalia

. For the first time in the motion to

reopen, Mb ugua claimed that he is a citizen of Somalia, and that Ethiopia was improperly designated as his country of removal. But the BIA was right to reject this claim, which was contradicted by Mbugua’s prior admissions

. 1 T he BIA did not
abuse its discretion by denying the motion to reopen based on Mbugua ’s failure to
show changed

- country conditions in his nation of removal.
2. The BIA also concluded that Mbugua fail ed to demonstrat e prima facie eligibility for relief

. The Immigration Judge found that Mbugua’s 1986 rape
conviction was a particularly serious crime that rendered him ineligible for withholding of removal, and was a valid basis to deny Mbugua’s asylum claim. Mbugua asserts that he is attempting to vacate t his conviction, but a mere attempt to

vacate the conviction is too speculative to entitle him to relief. See Silva v. Garland , 993 F.3d 705, 718 ( 9th Cir. 2021) ( recogniz ing that “ a prima facie case

. . . cannot be established from speculative conclusions or vague assertion s”) (simplified). The

1 In the prior proceedings, b oth Mbugua and his counsel told the Immigration Judge that Mbugua was born in Ethiopia and that he is a n Ethiopian citizen

. The same representations were made in Mbugua’s written brief to the BIA, as well as Mbugua’s original asylum application.4 22

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BIA did not abuse its discretion by conclud ing that Mbugua is not prima facie eligible for relief.
3. Mbugua’s claim that the BIA violated his due process rights by denying his motion to reopen also fails. To prevail on a due process claim, Mbugua must
show that (1) the proceeding was so fundamentally unfair that he was prevented from reasonably presenting his case, and (2) he demonstrates prejudice. See Vilchez v.
Holder , 682 F.3d 1195, 1199 (9th Cir. 2012) . Here, the BIA properly consider ed his
motion to reopen a nd ruled that Mbugua did not meet the requirements to excuse its untimeliness. Mbugua has not identified any unfairness or prejudice in the BIA’s ruling and so his claim must fail.
4. We have limited jurisdiction to review the BIA ’ s denial of a motion to reopen sua sponte, reviewing only to determine whether the BIA based its decision on legal or constitutional error. See Lona v. Barr , 958 F.3d 1225, 1227 (9th Cir. 2020)

. Mbugua has failed to raise any colorable legal or constitutional errors in the
BIA ’ s denial of sua sponte reopening. We thus lack jurisdiction to review that denial
of relief. See id . at 1235 (whe n the BIA's denial of sua sponte relief “was untainted by legal o r constitutional error .

. . there is nothing left for us to review”).
PETITION DENIED IN PART AND DISMISSED IN PART
.