Sheikh Haque v. Eric H. Holder Jr. ( 2011 )

FILED
NOT FOR PUBLICATION JUN 27 2011
MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U .S. C O U R T OF APPE ALS
FOR THE NINTH CIRCUIT
SHEIKH NURUL HAQUE, No. 08-73548
Petitioner, Agency No. A077-843-800
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.
Sheikh Nurul Haque, a native and citizen of the Bangladesh, petitions for
review of the Board of Immigration Appeals’ (“BIA”) order denying his motion to
reconsider. Our jurisdiction is governed by 8 U.S.C. § 1252. We review de novo
claims of due process violations, Colmenar v. INS, 210 F.3d 967, 971 (9th Cir.
*
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).
2000), and we review for abuse of discretion the denial of motions to reconsider or
reopen, Lara-Torres v. Ashcroft, 383 F.3d 968, 972 (9th Cir. 2004). We deny in
part and dismiss in part the petition for review.
The BIA did not abuse its discretion in construing Haque’s motion to
reconsider as a motion to reopen. See Mohammed v. Gonzales, 400 F.3d 785, 793
(9th Cir. 2005); see also 8 C.F.R. § 1003.2(c) (a motion to reopen seeks to present
new facts that would entitle the alien to relief from deportation). So construed, the
BIA did not abuse its discretion in denying the motion because Haque failed to
establish that his supporting evidence was not available and could not have been
discovered or presented at the former hearing. See 8 C.F.R. § 1003.2(c)(1).
We reject Haque’s contention that the BIA violated his right to due process.
See Lata v. INS, 204 F.3d 1241, 1246 (9th Cir. 2000) (requiring error to prevail on
due process claim).
To the extent Haque challenges the BIA’s March 24, 2008, order denying
his motion to reopen, we lack jurisdiction because this petition for review is not
timely as to that order. See 8 U.S.C. §1252(b)(1); Singh v. INS, 315 F.3d 1186,
1188 (9th Cir. 2003).
PETITION FOR REVIEW DENIED in part; DISMISSED in part.
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