                               NOT FOR PUBLICATION                       FILED
                     UNITED STATES COURT OF APPEALS                      APR 16 2018
                                                                      MOLLY C. DWYER, CLERK
                                                                       U.S. COURT OF APPEALS
                               FOR THE NINTH CIRCUIT

SANDRA RESTREPO-PEREZ, AKA                      No. 15-71091
Patricia Colon,
                                                Agency No. A077-999-746
                 Petitioner,
                                                MEMORANDUM*
   v.

JEFFERSON B. SESSIONS III, Attorney
General,

                 Respondent.

                      On Petition for Review of an Order of the
                          Board of Immigration Appeals

                       Argued and Submitted March 15, 2018
                            San Francisco, California

Before: PAEZ and IKUTA, Circuit Judges, and ADELMAN,** District Judge.

        Sandra Restrepo-Perez, a native and citizen of Colombia, petitions for

review of an order of the Board of Immigration Appeals denying her untimely

motion to reopen removal proceedings in light of Matter of A-R-C-G-, 26 I. & N.



        *
             This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
        **
             The Honorable Lynn S. Adelman, United States District Judge for the
Eastern District of Wisconsin, sitting by designation.
Dec. 388 (BIA 2014) (recognizing “married women in Guatemala who are unable

to leave their relationship” as a particular social group for asylum and withholding

purposes).

      The Board concluded that its decision in A-R-C-G- was not a fundamental

change in the law justifying an exercise of its sua sponte authority to reopen

proceedings. The Board further concluded that even if A-R-C-G- had been a

fundamental change, reopening was unwarranted because it would be futile.

Specifically, the Board noted that Restrepo-Perez had failed to show that she

would be able to overcome an independent obstacle to her eligibility for relief upon

reopening by establishing that Colombian authorities were unwilling or unable to

control her persecutor. See Respreto-Perez v. Holder, 553 F. App’x 687 (9th Cir.

2014) (mem.) (concluding, on consideration of a prior petition for review in these

proceedings, that substantial evidence supported the Board’s decision to deny

Restrepo-Perez’s asylum and withholding claims).

      Setting aside the question of whether we have jurisdiction to review the

Board’s conclusion that A-R-C-G- was not a fundamental change in the law, we

conclude that we lack jurisdiction to review the Board’s determination, based on its

assessment of the factual record, that reopening would be futile. See Bonilla v.

Lynch, 840 F.3d 575, 588 (9th Cir. 2016) (concluding that “this court has

jurisdiction to review Board decisions denying sua sponte reopening for the limited


                                          2
purpose of reviewing the reasoning behind the decisions for legal or constitutional

error”). That discretionary determination provides independent and unreviewable

grounds for the Board’s order.

      Therefore, the petition for review is DISMISSED.




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