NOT FOR PUBLICATION FILED UNITED STATES COURT OF APPEALS JUL 18 2023 MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS FOR THE NINTH CIRCUIT JOSE EDEL ACOSTA-SALDANA, No. 22-1368 Agency No. Petitioner, A095-697-743 v. MEMORANDUM* MERRICK B. GARLAND, Attorney General, Respondent. On Petition for Review of an Order of the Board of Immigration Appeals Submitted July 14, 2023** San Francisco, California Before: S.R. THOMAS, BEA, and BENNETT, Circuit Judges. Jose Edel Acosta-Saldana (“Petitioner”), a native and citizen of Mexico, petitions for review of the Board of Immigration Appeals’s (“BIA”) decision affirming the Immigration Judge’s (“IJ”) denial of his second motion to reopen removal proceedings. Exercising jurisdiction under 8 U.S.C. § 1252(a)(1), we deny the petition. * 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). “Because the BIA affirmed the IJ’s decision without opinion, we review the IJ’s decision as the final agency determination.” Khadka v. Holder, 618 F.3d 996, 1000 (9th Cir. 2010) (citation omitted). We review denials of motions to reopen for abuse of discretion. Kaur v. Garland, 2 F.4th 823, 829 (9th Cir. 2021) (citation omitted). “The BIA abuses its discretion when it acts arbitrarily, irrationally, or contrary to the law.” Id. (quoting Martinez v. Barr, 941 F.3d 907, 921 (9th Cir. 2019)). Applying this standard, “[w]e review legal questions de novo and factual findings for substantial evidence.” Id. (citation omitted). Substantial evidence supports an agency’s factual determination “unless the evidence compels a contrary conclusion.” Duran-Rodriguez v. Barr, 918 F.3d 1025, 1028 (9th Cir. 2019) (citation omitted). Typically, Petitioners may file “only one motion to reopen” removal proceedings, “and that motion must be filed no later than 90 days after the date on which” the removal order became final. 8 C.F.R. § 1003.2(c)(2); 8 U.S.C. § 1229a(c)(7)(A), (C)(i). But two exceptions are relevant here: the numerical and time bars can be waived if a petitioner can demonstrate (1) materially “changed country conditions arising in the country of nationality,” 8 U.S.C. § 1129a(c)(7)(C)(ii); 8 C.F.R. § 1003.2(c)(3)(ii); or (2) that they received ineffective assistance of counsel at earlier stages of the proceeding, see Salazar-Gonzalez v. Lynch, 798 F.3d 917, 920 (9th Cir. 2015). 1. The IJ did not abuse her discretion in concluding that Petitioner’s status as a gay man and his HIV diagnosis do not constitute materially changed 2 22-1368 country conditions. Almaraz v. Holder, 608 F.3d 638, 639–40 (9th Cir. 2010) (holding that petitioner’s HIV diagnosis was “a change in his personal circumstances, not a change in circumstances ‘arising in the country of nationality’” (quoting 8 C.F.R. § 1003.2(c)(3)(ii)). Although a change in health status can make a change in country conditions relevant, see Chandra v. Holder, 751 F.3d 1034, 1036–39 (9th Cir. 2014), substantial evidence supports the IJ’s factual determination that conditions for LGBT and HIV-positive individuals in Mexico “appear to have somewhat improved or …
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