Alma Cifuentes-Angel v. Eric Holder, Jr. ( 2013 )

FILED
NOT FOR PUBLICATION JUN 14 2013
MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U .S. C O U R T OF APPE ALS
FOR THE NINTH CIRCUIT
ALMA GRISELDA CIFUENTES- No. 11-70806
ANGEL,
Agency No. A098-115-726
Petitioner,
v. MEMORANDUM *
ERIC H. HOLDER, Jr., Attorney General,
Respondent.
On Petition for Review of an Order of the
Board of Immigration Appeals
Submitted June 10, 2013 **
Before: HAWKINS, McKEOWN, and BERZON, Circuit Judges.
Alma Griselda Cifuentes-Angel, a native and citizen of Guatemala, petitions
pro se for review of the Board of Immigration Appeals’ (“BIA”) order denying her
motion to reopen removal proceedings. Our jurisdiction is governed by 8 U.S.C.
§ 1252. We review for abuse of discretion the BIA’s denial of a motion to reopen.
*
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).
Cano-Merida v. INS, 311 F.3d 960, 964 (9th Cir. 2002). We deny in part and
dismiss in part the petition for review.
The BIA did not err in construing Cifuentes’s motion, which she titled a
motion to reopen, as a motion to reconsider because it was based on a change in
the law. See 8 C.F.R. § 1003.2(b)(1) (a motion to reconsider alleges an error in
fact or law); Membreno v. Gonzales, 425 F.3d 1227, 1229-30 (9th Cir. 2005) (en
banc) (new legal arguments are not new facts); Mohammed v. Gonzales, 400 F.3d
785, 792 (9th Cir. 2005) (BIA properly construed the motion according to its
underlying purpose). Because Cifuentes had filed a prior motion to reconsider, the
BIA did not abuse its discretion in denying her motion as number-barred. See
8 C.F.R. § 1003.2(b)(2) (only one motion to reconsider may be filed).
We lack jurisdiction to review the BIA’s decision to not exercise its
authority to reopen proceedings sua sponte. See Mejia-Hernandez v. Holder, 633
F.3d 818, 823-24 (9th Cir. 2011). We lack jurisdiction over Cifuentes’s remaining
contentions regarding the merits of her claim because the petition for review is not
timely as to those issues. See 8 U.S.C. § 1252(b)(1); Yepremyan v. Holder, 614
F.3d 1042, 1043 (9th Cir. 2010) (per curiam) (a petition for review must be filed
no later than thirty days following the date of the final order of removal).
PETITION FOR REVIEW DENIED in part; DISMISSED in part.
2 11-70806