Salvador Velasquez v. Loretta E. Lynch , 646 F. App'x 526 ( 2016 )

FILED
NOT FOR PUBLICATION MAR 25 2016
MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
SALVADOR VELASQUEZ, AKA No. 14-72261
Salvador Martinez Velasquez,
Agency No. A094-446-974
Petitioner,
v. MEMORANDUM*
LORETTA E. LYNCH, Attorney General,
Respondent.
On Petition for Review of an Order of the
Board of Immigration Appeals
Submitted March 15, 2016**
Before: GOODWIN, LEAVY, and CHRISTEN, Circuit Judges.
Salvador Velasquez, a native and citizen of El Salvador, petitions for review
of the Board of Immigration Appeals’ (“BIA”) order dismissing his appeal from an
immigration judge’s (“IJ”) decision denying his motion to reopen removal
proceedings conducted in absentia, and denying his motion to remand to the IJ.
*
This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
**
The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
Our jurisdiction is governed by 8 U.S.C. § 1252. We review for abuse of
discretion the denial of a motion to reopen and review de novo questions of law
and constitutional claims. Movsisian v. Ashcroft, 395 F.3d 1095, 1097-98 (9th Cir.
2005); Singh v. Ashcroft, 367 F.3d 1182, 1185 (9th Cir. 2004). We deny in part
and dismiss in part the petition for review.
The agency did not abuse its discretion by determining reopening was not
warranted based on lack of notice, where Velasquez did not submit an affidavit or
any other evidence with his motion in support of his claim that he did not receive
notice of his hearing. See 8 C.F.R. § 1003.23(b)(4)(ii) (a motion to reopen may be
“filed at any time if the alien demonstrates” lack of notice); 8 C.F.R.
§ 1003.23(b)(3) (a motion to reopen shall be supported by affidavits and other
evidentiary material); Carrillo-Gonzalez v. INS, 353 F.3d 1077, 1079 (9th Cir.
2003) (unsubstantiated statements of counsel do not constitute evidence).
The BIA did not err in declining to consider the sworn statement
Velasquez’s attorney provided on appeal to the BIA concerning Velasquez’s
alleged lack of notice. See 8 C.F.R. § 1003.1(d)(3)(iv) (the BIA “will not engage
in factfinding in the course of deciding appeals”).
Nor did the BIA err or abuse its discretion in construing and denying
Velasquez’s motion to remand for consideration of eligibility for relief under the
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Nicaraguan Adjustment and Central American Relief Act as a second, number-
barred and untimely motion to reopen, where it was filed more than six years after
Velasquez’s final order of removal. See U.S.C. § 1229a(c)(7)(C)(i).
Because the BIA did not err in dismissing Velasquez’s appeal or denying his
motions, Velasquez has not established a due process violation. See Lata v. INS,
204 F.3d 1241, 1246 (9th Cir. 2000) (to prevail on a due process challenge, an
alien must show error and prejudice).
We lack jurisdiction over Velasquez’s various unexhausted contentions,
including that the IJ relied on unsubstantiated facts, rendered ineffective assistance
to Velasquez, and erred regarding removability. See Tijani v. Holder, 628 F.3d
1071, 1080 (9th Cir. 2010) (“We lack jurisdiction to review legal claims not
presented in an alien’s administrative proceedings before the BIA.”).
To the extent Velasquez challenges the BIA’s decision not to invoke its sua
sponte authority to reopen, we lack jurisdiction over that contention. See Mejia-
Hernandez v. Holder, 633 F.3d 818, 823-24 (9th Cir. 2011).
PETITION FOR REVIEW DENIED in part; DISMISSED in part.
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