De Lopez v. Gonzales , 137 F. App'x 94 ( 2005 )

MEMORANDUM ^***

Maria Luisa Ambriz De Lopez, a native and citizen of Mexico, petitions for review of the Board of Immigration Appeals’ (“BIA”) order denying her motion to reopen cancellation of removal proceedings. To the extent we have jurisdiction, it is conferred by 8 U.S.C. § 1252. We dismiss in part and deny in part the petition for review.

We lack jurisdiction to review Ambriz De Lopez’s contentions that the immigration judge violated her due process rights by finding she failed to establish the requisite physical presence and by failing to properly analyze the alleged hardship to her United States citizen daughter, because Ambriz De Lopez faded to file a timely petition for review of her underlying order of removal. See Martinez-Serrano v. INS, 94 F.3d 1256, 1258 (9th Cir.1996).

We review the BIA’s denial of Ambriz De Lopez’s motion to reopen for abuse of discretion. See Caruncho v. INS, 68 F.3d 356, 360 (9th Cir.1995). We conclude this denial did not constitute an abuse of discretion because petitioner did not demonstrate that her proffered evidence was previously unavailable. See 8 C.F.R. § 1003.2(c)(1) (“[a] motion to reopen proceedings shall not be granted unless it appears to the Board that evidence sought to be offered is material and was not available and could not have been discovered or presented at the former hearing ... ”). Accordingly, the BIA’s stated reasons for denying the motion were not “arbitrary, irrational or contrary to law.” See Caruncho, 68 F.3d at 360.

PETITION FOR REVIEW DISMISSED in part; DENIED in part.

*** This disposition is not appropriate for publication and may not be cited to or by the courts of this circuit except as provided by Ninth Circuit Rule 36-3.