NOT FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

JUAN MANUEL VILLASENOR, 

Petitioner, 

 v. 

MERRICK B. GARLAND, Attorney 

General, 

Respondent.

No. 18-72609 

Agency No. A075-270-862 

MEMORANDUM*

On Petition for Review of an Order of the

Board of Immigration Appeals

Submitted February 10, 2022**

San Francisco, California

Before: HURWITZ and VANDYKE, Circuit Judges, and ERICKSEN,*** District 

Judge.

Petitioner Juan Manuel Villasenor seeks review of an August 29, 2018, 

decision from the Board of Immigration Appeals (BIA) that denied his third motion 

* 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 Joan N. Ericksen, United States District Judge for the District of 

Minnesota, sitting by designation.

FILED

FEB 14 2022

MOLLY C. DWYER, CLERK

U.S. COURT OF APPEALS
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to reopen his 1999 removal proceeding as untimely and number-barred. Petitioner 

argues that the BIA erred in denying the motion to reopen, and that the BIA should 

have exercised its discretion to reopen his proceeding sua sponte. We dismiss the 

petition in part and deny it in part.

1. Because Petitioner’s challenge to the BIA’s sua sponte decision is based 

on the exercise of its discretion and not the resolution of a legal issue, we lack 

jurisdiction to review it, and dismiss that portion of the petition. Mejia-Hernandez 

v. Holder, 633 F.3d 818, 823–24 (9th Cir. 2011); Ekimian v. INS, 303 F.3d 1153, 

1159 (9th Cir. 2002); cf. Bonilla v. Lynch, 840 F.3d 575, 586–89 (9th Cir. 2016) (the 

Court has jurisdiction to review legal issues decided by the BIA when it declines to 

reopen sua sponte). 

2. We have jurisdiction over Petitioner’s remaining claims under 

8 U.S.C. § 1252. We review the denial of a motion to reopen for abuse of discretion, 

giving broad deference to the agency’s decision. See Feng Gui Lin v. Holder, 588 

F.3d 981, 984 (9th Cir. 2009). Under that standard, we uphold the BIA’s decision 

unless it acted arbitrarily, irrationally, or contrary to law. Go v. Holder, 744 F.3d 

604, 609 (9th Cir. 2014); Perez v. Mukasey, 516 F.3d 770, 773 (9th Cir. 2008). The 

BIA did not do so here.

a. An alien subject to a final order of removal is generally limited to filing 

one motion to reopen, which must be filed within 90 days of entry of the order. 8 
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U.S.C. § 1229a(c)(7)(A), (C)(i); 8 C.F.R. § 1003.2(c)(2). Petitioner’s final order of 

removal was issued in 2002, his third motion to reopen was filed on May 7, 2017, 

far beyond the 90-day deadline, and he has not established that any statutory or 

regulatory exception applies. Accordingly, the BIA did not abuse its discretion in 

denying Petitioner’s motion to reopen as untimely and number-barred. See Go, 744 

F.3d at 609. 

b. The BIA also did not abuse its discretion in denying Petitioner’s motion to 

reopen for failure to establish prima facie eligibility for the relief sought. See 

Najmabadi v. Holder, 597 F.3d 983, 986 (9th Cir. 2010) (“The BIA can deny a 

motion to reopen on any one of at least three independent grounds—failure to 

establish a prima facie case for the relief sought, failure to introduce previously 

unavailable, material evidence, and a determination that even if these requirements 

were satisfied, the movant would not be entitled to the discretionary grant of relief 

which he sought.”) (internal quotation marks and citation omitted). 

PETITION DISMISSED in part and DENIED in part.