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 2023-03

Jie Xu v. Merrick Garland ( 2023 )


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  •                               NOT FOR PUBLICATION                        FILED
UNITED STATES COURT OF APPEALS                       MAR 17 2023
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
JIE XU,                                         No.    19-70072
Petitioner,                     Agency No. A096-067-427
v.
MEMORANDUM*
MERRICK B. GARLAND, Attorney
General,
Respondent.
On Petition for Review of an Order of the
Board of Immigration Appeals
Submitted March 14, 2023**
Before:      SILVERMAN, SUNG, and SANCHEZ, Circuit Judges.
Jie Xu, a native and citizen of China, petitions pro se for review of the Board
of Immigration Appeals’ (“BIA”) order dismissing her appeal from an Immigration
Judge’s (“IJ”) decision denying her motion to reconsider. Our jurisdiction is
governed by
    8 U.S.C. § 1252
    . We review for abuse of discretion the denial of a
*
This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
**
The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
motion to reconsider. Mohammed v. Gonzales,
    400 F.3d 785
    , 791 (9th Cir. 2005).
We deny in part and dismiss in part the petition for review.
The agency did not abuse its discretion in denying the motion to reconsider
because Xu failed to identify any error of fact or law in the IJ’s prior decision
denying asylum, withholding of removal, and protection under the Convention
Against Torture. See
    8 C.F.R. § 1003.2
    (b)(1); Ma v. Ashcroft,
    361 F.3d 553
    , 558
(9th Cir. 2004) (motion to reconsider must identify a legal or factual error in the
prior decision); see also Lona v. Barr,
    958 F.3d 1225
    , 1229 (9th Cir. 2020) (this
court will reverse only if agency’s decision is arbitrary, irrational, or contrary to
law).
We do not consider the materials Xu references in her opening brief that are
not part of the administrative record. See Fisher v. INS,
    79 F.3d 955
    , 963-64 (9th
Cir. 1996) (en banc).
To the extent Xu challenges the IJ’s 2017 decision denying relief, we lack
jurisdiction to consider her contentions because Xu did not appeal that decision to
the BIA and thereby failed to exhaust her administrative remedies. See Barron v.
Ashcroft,
    358 F.3d 674
    , 677-78 (9th Cir. 2004) (petitioner must exhaust issues or
claims in administrative proceedings below).
PETITION FOR REVIEW DENIED in part; DISMISSED in part.
2                                     19-70072