`
`UNITED STATES COURT OF APPEALS
`
`FOR THE NINTH CIRCUIT
`
`FILED
`
`
`FEB 18 2025
`
`MOLLY C. DWYER, CLERK
`U.S. COURT OF APPEALS
`
`
`
`ALMA STEFANY CASTILLO,
`
` Petitioner,
`
` v.
`
`PAMELA BONDI, Attorney General,
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` Respondent.
`
`
`
` No. 23-2645
`
`Agency No.
`A205-078-318
`
`
`MEMORANDUM*
`
`On Petition for Review of an Order of the
`Board of Immigration Appeals
`
`Submitted February 13, 2025**
`Pasadena, California
`
`
`Before: WALLACE, GRABER, and BUMATAY, Circuit Judges.
`
`
`
`Petitioner Alma Stefany Castillo is a native and citizen of El Salvador.
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`During removal proceedings, she applied for asylum, withholding of removal, and
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`relief under the Convention Against Torture (“CAT”). In 2019, the Board of
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`Immigration Appeals (“BIA”) dismissed Petitioner’s appeal from an immigration
`
`*
`
`
`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).
`
`
`
`
`judge’s adverse decision and issued a final order of removal. We upheld the
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`agency’s decision on November 21, 2022. Castillo v. Garland, No. 20-70130,
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`2022 WL 17090166 (9th Cir. Nov. 21, 2022). Three days earlier, on November
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`18, 2022, Petitioner filed a motion with the BIA to reopen her case. The BIA
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`denied the motion to reopen in 2023. In the instant petition for review, Petitioner
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`argues that the BIA should have granted the motion because Niz-Chavez v.
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`Garland, 593 U.S. 155 (2021), represents a material change in the law affecting her
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`case. We deny the petition in part and dismiss it in part.
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`
`
`The BIA correctly determined that Petitioner’s motion was untimely. The
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`relevant statute and implementing regulation require a motion to reopen to be filed
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`within 90 days of the date when the final administrative order of removal is
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`entered. 8 U.S.C. § 1229a(c)(7)(C)(i); 8 C.F.R. § 1003.2(c)(2). Here, the pertinent
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`date is December 16, 2019, so Petitioner filed her motion nearly three years too
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`late. And despite Petitioner’s suggestion to the contrary, “the pendency of a
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`petition for review of an order of removal does not toll the statutory time limit for
`
`the filing of a motion to reopen with the BIA.” Dela Cruz v. Mukasey, 532 F.3d
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`946, 949 (9th Cir. 2008) (per curiam).
`
`
`
`The BIA also declined to reopen sua sponte Petitioner’s case. See Bonilla v.
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`Lynch, 840 F.3d 575, 582 n.4 (9th Cir. 2016) (noting that, even when the motion to
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`reopen is untimely, the BIA may “decide[] to reopen proceedings on its own
`
`
`
`2
`
`23-2645
`
`
`
`authority” (citing 8 C.F.R. § 1003.2(a))). The BIA permissibly reasoned that,
`
`although a fundamental change in law can be an exceptional circumstance
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`warranting reopening, Niz-Chavez’s ruling regarding the “stop-time” rule is not
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`relevant to Petitioner’s case because she was neither prevented from seeking relief
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`nor denied relief based on that rule. Because the BIA made no legal or
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`constitutional error, we lack jurisdiction to review the BIA’s decision not to
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`exercise its sua sponte authority to reopen. See Lona v. Barr, 958 F.3d 1225,
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`1234–35 (9th Cir. 2020).
`
`
`
`PETITION DENIED IN PART AND DISMISSED IN PART.
`
`
`
`3
`
`23-2645
`
`
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