NOT FOR PUBLICATION FILED UNITED STATES COURT OF APPEALS JUL 27 2023 MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS FOR THE NINTH CIRCUIT FORTUNATO DE JESUS AMADOR No. 18-71987 DUENAS, Agency No. A205-318-278 Petitioner, v. MEMORANDUM* MERRICK B. GARLAND, Attorney General, Respondent. On Petition for Review of an Order of the Board of Immigration Appeals Submitted July 20, 2023** San Francisco, California Before: OWENS, LEE, and BUMATAY, Circuit Judges. Fortunato de Jesus Amador Duenas petitions for review of an order from the Board of Immigration Appeals (BIA) denying his motion to reopen removal proceedings. We have jurisdiction under 8 U.S.C. § 1252(a)(1), and we deny the * This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3. ** The panel unanimously concludes that this case is suitable for decision without oral argument. See Fed. R. App. P. 34(a)(2). petition for review. 1. In a published opinion issued concurrently with this memorandum disposition, we hold that the appointment and removal process for Immigration Judges and members of the BIA comports with the Constitution. These officials are inferior officers of the United States, see Lucia v. SEC, 138 S. Ct. 2044, 2051–53 (2018); Free Enter. Fund v. PCAOB, 561 U.S. 477, 510 (2010), so the Constitution’s Appointments Clause permits their appointment by the Attorney General. U.S. Const. art. II, § 2, cl. 2; 8 U.S.C. § 1101(b)(4); 8 U.S.C. § 1229a; 8 C.F.R. § 1003.1. And Amador Duenas has identified no impermissible restriction on the Attorney General’s ability to remove these officials. See Free Enter. Fund, 561 U.S. at 493, 495–96. 2. The BIA did not abuse its discretion by denying Amador Duenas’s motion to reopen the removal proceedings. See Najmabadi v. Holder, 597 F.3d 983, 986 (9th Cir. 2010). A petitioner must support a motion to reopen with “previously unavailable, material evidence.” Id. Amador Duenas accompanied his motion with declarations from him and his attorney regarding his attorney’s failure to file the documents necessary to receive a briefing schedule for his appeal to the BIA. This evidence does not affect Amador Duenas’s eligibility for relief from removal. Because it would not “change the result in the case,” it cannot support reopening removal proceedings. See Shin v. Mukasey, 547 F.3d 1019, 1025 (9th Cir. 2008). 2 3. We will not consider Amador Duenas’s argument that the agency erred in denying his application for cancellation of removal. Amador Duenas never sought review of the BIA’s on-the-merits dismissal of his appeal of the Immigration Judge’s determination that he was ineligible for cancellation because he failed to provide evidence showing ten years of continuous physical presence in the United States. He petitions for review only of the BIA’s later decision to deny his motion to reopen the removal proceedings. “Our review is, therefore, limited to consideration of that order, rather than the merits of [Amador Duenas’s] underlying claim for cancellation of removal.” See Hernandez-Velasquez v. Holder, 611 F.3d 1073, 1077 (9th Cir. 2010); see also …
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