NOT FOR PUBLICATION FILED

UNITED STATES COURT OF APPEALS FEB 23 2022

MOLLY C. DWYER, CLERK

U.S. COURT OF APPEALS

FOR THE NINTH CIRCUIT ANTELMO RODRIGUEZ-HERNANDEZ, No. 16-71366

Petitioner, Agency No. A079-530-326 v.

MEMORANDUM* MERRICK B. GARLAND, Attorney General,

Respondent.

On Petition for Review of an Order of the

Board of Immigration Appeals

Submitted February 15, 2022** Before: FERNANDEZ, TASHIMA, and FRIEDLAND, Circuit Judges.

Antelmo Rodriguez-Hernandez, a native and citizen of Mexico, petitions for review of the Board of Immigration Appeals’ (“BIA”) order denying his motion to reopen removal proceedings. We have jurisdiction under 8 U.S.C. § 1252. We review for abuse of discretion the denial of a motion to reopen. Mohammed v.

*

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). Gonzales, 400 F.3d 785, 791 (9th Cir. 2005). We review de novo claims of due process violations in immigration proceedings. Simeonov v. Ashcroft, 371 F.3d 532, 535 (9th Cir. 2004). We deny the petition for review.

The BIA did not abuse its discretion in denying Rodriguez-Hernandez’s motion to reopen as untimely where the motion was filed more than 10 years after the final order of removal, and where Rodriguez-Hernandez failed to demonstrate a material change in country conditions in Mexico to qualify for the regulatory exception to the time limitation for filing a motion to reopen. See 8 C.F.R. §§ 1003.2(c)(2), (3)(ii); Najmabadi v. Holder, 597 F.3d 983, 990-91 (9th Cir. 2010) (BIA did not abuse its discretion in denying motion to reopen where petitioner failed to submit material evidence of qualitatively different country conditions).

Rodriguez-Hernandez’s contentions that the BIA violated his right to due process fails. See Lata v. INS, 204 F.3d 1241, 1246 (9th Cir. 2000) (error and substantial prejudice are required to prevail on a due process claim); see also Najmabadi, 597 F.3d at 990 (the agency adequately considered evidence and sufficiently announced its decision).

We do not consider the materials Rodriguez-Hernandez references in his opening brief that are not part of the administrative record. See Fisher v. INS, 79

2 16-71366 F.3d 955, 963-64 (9th Cir. 1996) (en banc). Rodriguez-Hernandez’s request, raised in his opening brief, to take judicial notice is denied. See id.

The temporary stay of removal remains in place until issuance of the mandate.

PETITION FOR REVIEW DENIED.

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