Elizabeth Francisco v. Eric Holder, Jr.

FILED
NOT FOR PUBLICATION DEC 20 2013
MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
ELIZABETH CORONADO No. 11-70169
FRANCISCO,
Agency No. A072-441-852
Petitioner,
v. MEMORANDUM*
ERIC H. HOLDER, Jr., Attorney General,
Respondent.
On Petition for Review of an Order of the
Board of Immigration Appeals
Submitted December 17, 2013**
Before: GOODWIN, WALLACE, and GRABER, Circuit Judges.
Elizabeth Coronado Francisco, a native and citizen of the Philippines,
petitions for review of the Board of Immigration Appeals’ (“BIA”) order denying
her second motion to reopen removal proceedings. Our jurisdiction is governed by
8 U.S.C. § 1252. We review for abuse of discretion the denial of a motion to
*
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).
reopen, and review de novo constitutional claims. 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 BIA did not abuse its discretion in denying Francisco’s motion as
untimely and number-barred, where the successive motion was filed more than
thirteen years after her removal order became final, see 8 C.F.R. § 1003.2(c)(2)
(motion to reopen must be filed within ninety days of final order of removal), and
her possible eligibility for a new form of relief is not an exception to the filing
requirements or time and number limitations, see 8 C.F.R. § 1003.2(c)(3) (listing
exceptions); see also Ocampo v. Holder, 629 F.3d 923, 928 (9th Cir. 2010). It
follows that Francisco’s due process claim fails. See Lata v. INS, 204 F.3d 1241,
1246 (9th Cir. 2000) (petitioner must show error and prejudice to establish a due
process violation); Mendez-Alcaraz v. Gonzales, 464 F.3d 842, 844 (9th Cir. 2006)
(declining to reach nondispositive challenges to a BIA order).
We lack jurisdiction to review the BIA’s discretionary decision to not reopen
removal proceedings sua sponte. See Mejia-Hernandez v. Holder, 633 F.3d 818,
823-24 (9th Cir. 2011).
PETITION FOR REVIEW DENIED in part; DISMISSED in part.
2 11-70169