NOT PRECEDENTIAL UNITED STATES COURT OF APPEALS FOR THE THIRD CIRCUIT ___________ No. 19-2723 ___________ OMAR ALEXANDER CASTILLO-PONCE, Petitioner v. ATTORNEY GENERAL UNITED STATES OF AMERICA ____________________________________ On Petition for Review of an Order of the Board of Immigration Appeals (Agency No. A088-649-274) Immigration Judge: Miriam K. Mills ____________________________________ Submitted Pursuant to Third Circuit L.A.R. 34.1(a) October 23, 2020 Before: CHAGARES, GREENAWAY, JR., and NYGAARD, Circuit Judges (Opinion filed: January 8, 2021) ___________ OPINION* __________ NYGAARD, Circuit Judge. * This disposition is not an opinion of the full Court and pursuant to I.O.P. 5.7 does not constitute binding precedent. Omar Alexander Castillo-Ponce petitions this Court to review the Board of Immigration Appeals’ decision to deny his motion to reopen. We will deny the petition in part and dismiss it in part. Castillo-Ponce filed a motion in 2018 requesting that the Board reopen proceedings and consider his argument that, although it summarily denied his application for withholding of removal in 2015, he can now show prima facie eligibility for cancellation of removal. See 8 U.S.C. § 1229b(b)(1)(A)-(D).1 He claims he is able to demonstrate at least ten-years continuous physical presence in the United States because a 2018 Supreme Court decision prevents the government from applying the stop-time rule in his case. See Pereira v. Sessions, 138 S. Ct. 2105 (2018). Pereira impacts his request for cancellation, he contends, because the 2008 Notice to Appear he received did not have the initial hearing date or time. Nonetheless, the Board denied Castillo-Ponce’s untimely motion to reopen because he failed to provide evidence to support his prima facie eligibility for cancellation.2 It also concluded that Castillo-Ponce did not demonstrate any exceptional circumstances to warrant sua sponte reopening. 1 The prima facie elements for cancellation of removal for a nonpermanent resident are: physically present in the U.S. for at least 10 years, good moral character, not convicted for offenses specified in the statute, and the nonpermanent resident’s “removal would result in exceptional and extremely unusual hardship to the alien's spouse, parent, or child, who is a citizen of the United States or an alien lawfully admitted for permanent residence.” § 1229b(b)(1)(A)–(D). 2 Castillo-Ponce filed the motion on September 19, 2018, far beyond the ninety-day filing period. See 8 C.F.R. § 1003.2(c)(2)-(3). But the Board set aside the untimeliness of the motion in its analysis of his motion. As a result, we do not address Castillo-Ponce’s equitable tolling argument. 2 We have jurisdiction to review the Board’s decision to deny a motion to reopen for failure to establish a prima facie case under 8 U.S.C. § 1252(a)(1). We review it for abuse of discretion. See Sevoian v. Ashcroft, 290 F.3d 166, 174 (3d Cir. 2002). Because we are convinced that the Board did not abuse its discretion by ruling that Castillo-Ponce failed to meet his evidentiary burden on the hardship prong of prima facie eligibility (8 U.S.C. § 1229b(b)(1)(D)), we will not reach his argument on the impact of Pereira to his case. The record shows ...
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