Maricruz Avila-Gutierrez v. Eric Holder, Jr.

FILED
NOT FOR PUBLICATION MAR 17 2015
MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
MARICRUZ AVILA-GUTIERREZ, No. 13-71564
Petitioner, Agency No. A091-852-710
v.
MEMORANDUM*
ERIC H. HOLDER, Jr., Attorney General,
Respondent.
On Petition for Review of an Order of the
Board of Immigration Appeals
Submitted March 10, 2015**
Before: FARRIS, WARDLAW, and PAEZ, Circuit Judges.
Maricruz Avila-Gutierrez, a native and citizen of Mexico, petitions for
review of the Board of Immigration Appeals’ (“BIA”) order dismissing her appeal
from an immigration judge’s order denying her motion to reopen removal
proceedings. Our jurisdiction is governed by 8 U.S.C. § 1252. We review for
*
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).
abuse of discretion the denial of a motion to reopen. Mohammed v. Gonzales, 400
F.3d 785, 791-92 (9th Cir. 2005). We deny in part and dismiss in part the petition
for review.
The agency did not abuse its discretion in denying Avila-Gutierrez’ motion
to reopen as a matter of discretion, where the agency considered both the positive
and negative factors presented in her case and determined that she was not entitled
to a favorable exercise of discretion. See Zheng v. Holder, 644 F.3d 829, 833 (9th
Cir. 2011) (in determining whether to exercise its discretion in favor of a
petitioner, the agency must consider “all relevant factors includ[ing] taking into
account both negative and positive circumstances relevant to each [p]etitioner”
(citation and internal quotation marks omitted)).
We lack jurisdiction to consider Avila-Gutierrez’ contentions regarding her
removability, where she has not exhausted these arguments before the agency. See
Tijani v. Holder, 628 F.3d 1071, 1080 (9th Cir. 2010) (the court lacks jurisdiction
to consider legal claims not presented in an alien’s administrative proceedings
before the agency).
We decline to review Avila-Gutierrez’s contentions that the agency erred in
not equitably tolling the filing deadline for her untimely motion to reopen and that
she established ineffective assistance of counsel, because these are not grounds the
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BIA relied upon in dismissing her appeal. See Najmabadi v. Holder, 597 F.3d 983,
992 (9th Cir. 2010) (“[O]ur review is limited to the grounds actually relied upon by
the BIA[.]”).
PETITION FOR REVIEW DENIED in part; DISMISSED in part.
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