FILED NOT FOR PUBLICATION JUN 15 2022 UNITED STATES COURT OF APPEALS MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS FOR THE NINTH CIRCUIT JORGE GUERRA-LEYVA, AKA Jorge No. 18-70504 C. Guerra, Agency No. A074-059-323 Petitioner, v. MEMORANDUM* MERRICK B. GARLAND, Attorney General, Respondent. On Petition for Review of an Order of the Board of Immigration Appeals Submitted June 13, 2022** San Francisco, California Before: S.R. THOMAS and GOULD, Circuit Judges, and WU,*** District Judge. * 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 George H. Wu, United States District Judge for the Central District of California, sitting by designation. Jorge Guerra-Leyva, a native of Cuba, petitions for review of the Board of Immigration Appeals’ (“BIA”) dismissal of his appeal from the denial of his motion to reopen his removal proceedings. We review the agency’s denial of a motion to reopen for abuse of discretion. Agonafer v. Sessions, 859 F.3d 1198, 1203 (9th Cir. 2017). We have jurisdiction under 8 U.S.C. § 1252. We dismiss in part and deny in part the petition for review. I Guerra-Leyva’s motion to reopen was untimely. Motions to reopen must be filed within ninety days of a final removal order. 8 C.F.R. § 1003.2(c)(2); see id. § 1003.2(c)(3)(ii) (providing that motions to reopen based on changed country conditions may be filed at any time). Guerra-Leyva’s motion was filed about eighteen years after he was ordered removed. The BIA properly concluded that his untimeliness should not be excused. A The BIA acted within its discretion in determining that Guerra-Leyva failed to show changed country conditions material to his claims for relief. Guerra-Leyva produced no evidence suggesting that the conditions relevant to his claims of future persecution and torture were different from those that existed at the time of his 1999 removal hearing. His own affidavit, submitted with his motion, describes 2 the present conditions in Cuba as a continuation of past conditions, noting that the government “continues to be a strong dictatorship” (emphasis added). Further, the shifts in diplomatic relations that Guerra-Leyva claims will make it more likely that he will be removed to Cuba are not material to his claims for relief. The fact of removal is assumed when evaluating a petitioner’s case for asylum and related relief. Thus, the actual probability of removal has no bearing on the strength of a claim. See, e.g., Al-Harbi v. INS, 242 F.3d 882, 890 (9th Cir. 2001) (requiring “proof of a well-founded fear of future persecution if returned to Iraq” to demonstrate asylum eligibility (emphasis added)). B The BIA also acted within its discretion in declining to equitably toll the deadline for Guerra-Leyva’s motion to reopen. Guerra-Leyva’s primary argument for equitable tolling is that at the time of his deportation hearing in 1999, he was eligible for adjustment of status under the …
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