Oliver Schaper v. Eric Holder, Jr. , 591 F. App'x 559 ( 2015 )

FILED
NOT FOR PUBLICATION JAN 27 2015
MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
OLIVER SCHAPER, AKA Oliver Dr. No. 12-74113
Schaper,
Agency No. A098-957-911
Petitioner,
v. MEMORANDUM*
ERIC H. HOLDER, Jr., Attorney General,
Respondent.
On Petition for Review of an Order of the
Board of Immigration Appeals
Submitted January 21, 2015**
Before: CANBY, GOULD, and N.R. SMITH, Circuit Judges.
Oliver Schaper, a native and citizen of Germany, petitions pro se 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. Our jurisdiction is governed by 8 U.S.C. § 1252. We review for
*
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).
abuse of discretion the denial of a motion to reopen, Avagyan v. Holder, 646 F.3d
672, 674 (9th Cir. 2011), and we dismiss in part and deny in part the petition for
review.
We lack jurisdiction to review Schaper’s challenges to the IJ’s June 4, 2010,
order denying his application for asylum, withholding of removal, and protection
under the Convention Against Torture because Schaper did not file a petition for
review of that order. See Stone v. INS, 514 U.S. 386, 405-06 (1995); Martinez-
Serrano v. INS, 94 F.3d 1256, 1258 (9th Cir. 1996).
The BIA did not abuse its discretion in dismissing Schaper’s appeal from an
IJ’s denial of his motion to reopen because he failed to establish that it was based
on evidence that was not available and could not have been discovered or
presented at the former hearings. See 8 C.F.R. § 1003.23(b)(3); INS v. Abudu, 485
U.S. 94, 104-05 (1988) (agency may deny a motion to reopen for failure to
introduce previously unavailable evidence). We reject Schaper’s contention that
the IJ and/or BIA failed to evaluate his evidence.
Finally, we deny Schaper’s request for remand based on his marriage to a
U.S. citizen. See 8 C.F.R. § 1003.2(c)(1).
This dismissal is without prejudice to petitioner’s seeking prosecutorial
discretion or deferred action from the Department of Homeland Security. See
2 12-74113
Reno v. American-Arab Anti-Discrimination Committee (AADC), 525 U.S. 471,
483-85 (1999) (stating that prosecutorial discretion by the agency can be granted at
any stage, including after the conclusion of judicial review).
PETITION FOR REVIEW DISMISSED in part; DENIED in part.
3 12-74113