Hugo Sosa Rivas Y Perez v. Eric Holder, Jr. ( 2011 )

FILED
NOT FOR PUBLICATION JUN 21 2011
MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U .S. C O U R T OF APPE ALS
FOR THE NINTH CIRCUIT
HUGO SOSA RIVAS Y PEREZ, No. 09-73070
Petitioner, Agency No. A095-003-287
v.
MEMORANDUM *
ERIC H. HOLDER, Jr., Attorney General,
Respondent.
On Petition for Review of an Order of the
Board of Immigration Appeals
Submitted June 15, 2011 **
Before: CANBY, O’SCANNLAIN, and FISHER, Circuit Judges.
Hugo Sosa Rivas y Perez, 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 reconsider. We
have jurisdiction under 8 U.S.C. § 1252. We review for abuse of discretion the
*
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).
denial of a motion to reconsider, Mohammed v. Gonzales, 400 F.3d 785, 791 (9th
Cir. 2005), and we deny the petition for review.
The agency did not abuse its discretion by denying Sosa Rivas y Perez’s
motion to reconsider where he failed to establish any error of fact or law in the IJ’s
previous decision denying his motion to reopen. See 8 C.F.R. § 1003.23(b)(2);
Sembiring v. Gonzales, 499 F.3d 981, 988 (9th Cir. 2007) (in a motion to reopen
based on lack of notice, a petitioner must “produce[] sufficient evidence to
overcome the presumption of effective service by regular mail”).
To the extent Sosa Rivas y Perez’s motion to reconsider was based on newly
submitted evidence, the agency did not abuse its discretion by construing the
motion as a second motion to reopen and by denying it as numerically barred. See
Mohammed, 400 F.3d at 793 (BIA may construe motions based on their underlying
purpose); Vega v. Holder, 611 F.3d 1168, 1171 (9th Cir. 2010) (purpose of a
motion to reconsider is not to submit new evidence); 8 C.F.R. § 1003.23(b)(4)(ii)
(only one motion to reopen in absentia removal proceedings is permitted).
Sosa Rivas y Perez’s contention that the BIA erred by failing to remand to
the IJ fails because he did not request a remand in connection with his BIA appeal.
Sosa Rivas y Perez’s remaining contentions are unavailing.
PETITION FOR REVIEW DENIED.
2 09-73070