NOT FOR PUBLICATION FILED UNITED STATES COURT OF APPEALS JUL 21 2020 MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS FOR THE NINTH CIRCUIT MARCOS ANTONIO LOMELI, No. 17-72055 18-70757 Petitioner, 18-71601 v. Agency No. A017-224-401 WILLIAM P. BARR, Attorney General, MEMORANDUM* Respondent. On Petition for Review of an Order of the Board of Immigration Appeals Argued and Submitted July 8, 2020 Seattle, Washington Before: FERNANDEZ and NGUYEN, Circuit Judges, and BOLTON,** District Judge. Marcos Lomeli petitions for review of three decisions of the Board of Immigration Appeals (“BIA”)—two denying motions to reopen and one denying a * This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3. ** The Honorable Susan R. Bolton, United States District Judge for the District of Arizona, sitting by designation. motion for reconsideration.1 Lomeli argues that he is a United States citizen under Sessions v. Morales-Santana, 137 S. Ct. 1678 (2017). We have jurisdiction under 8 U.S.C. § 1252, and we deny the consolidated petitions. 1. Lomeli’s two motions to reopen were time- and number-barred by statute. See 8 U.S.C. § 1229a(c)(7)(A), (C)(i); 8 C.F.R. § 1003.2(c)(2) (providing that “a party may file only one motion to reopen deportation or exclusion proceedings” and that a motion to reopen “must be filed no later than 90 days after the date on which the final administrative decision was rendered”). The final administrative order issued on August 3, 2007 and the two motions to reopen— Lomeli’s fifth and sixth such motions—were filed in 2017 and 2018. But Lomeli may still ask the BIA to exercise its sua sponte authority to reopen his removal proceedings, see Bonilla v. Lynch, 840 F.3d 575, 585 (9th Cir. 2016), and he did so here. We “[have] jurisdiction to review Board decisions denying sua sponte reopening for the limited purpose of reviewing the reasoning behind the decisions for legal or constitutional error.” Id. at 588. In its order denying Lomeli’s fifth motion to reopen, the BIA concluded that Morales-Santana did not affect Lomeli’s citizenship claim. The BIA denied Lomeli’s sixth motion to reopen on the same ground. Thus, under Bonilla, we 1 The motion for reconsideration argued that Lomeli’s removal order was constitutionally defective. By not advancing that argument before this court, Lomeli has waived it. See Smith v. Marsh, 194 F.3d 1045, 1052 (9th Cir. 1999). 2 have jurisdiction to review the purely legal issue of whether the BIA correctly interpreted Morales-Santana. 2. In Morales-Santana, the Supreme Court held that the statutory provisions governing the derivative citizenship of a child born abroad to one U.S.- citizen parent and one non-U.S.-citizen parent, 8 U.S.C. §§ 1401(a)(7), 1409(a), and 1409(c) (1952), violated equal protection, 137 S. Ct. at 1698. Congress imposed a ten-year physical-presence requirement for most U.S.-citizen parents, see 8 U.S.C. §§ 1401(a)(7), 1409(a) (1952), in order to counteract the “foreign” influence a non-U.S.-citizen parent may impose on a child, 137 S. Ct. at 1692. But “[f]or unwed [U.S.-]citizen mothers, . . . ...
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