Pablo Garcia-Delgado v. Eric H. Holder Jr.

FILED
NOT FOR PUBLICATION MAY 17 2012
MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U .S. C O U R T OF APPE ALS
FOR THE NINTH CIRCUIT
PABLO ANTONIO GARCIA- No. 08-72070
DELGADO; et al.,
Agency Nos. A095-309-339
Petitioners, A095-309-336
A095-309-337
v. A095-309-338
ERIC H. HOLDER, Jr., Attorney General,
MEMORANDUM *
Respondent.
On Petition for Review of an Order of the
Board of Immigration Appeals
Submitted May 15, 2012 **
Before: CANBY, GRABER, and M. SMITH, Circuit Judges.
Pablo Antonio Garcia-Delgado and his family, all natives and citizens of
Mexico, petition for review of the Board of Immigration Appeals’ (“BIA”) order
denying their motion to reopen removal proceedings. Our jurisdiction is governed
*
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).
by 8 U.S.C. § 1252. We review for abuse of discretion the denial of a motion to
reopen, Lin v. Holder, 588 F.3d 981, 984 (9th Cir. 2009), and we deny in part and
dismiss in part the petition for review.
The BIA did not abuse its discretion in denying petitioners’ motion to
reopen as untimely because the motion was filed nearly four years after the BIA’s
final decision, see 8 C.F.R. § 1003.2(c), and petitioners did not establish prima
facie eligibility for relief, see Toufighi v. Mukasey, 538 F.3d 988, 996 (9th Cir.
2008) (evidence must demonstrate prima facie eligibility for relief warranting
reopening based on changed country conditions).
Further, even if the BIA erred by failing to consider Garcia-Delgado’s
affidavit in denying the motion to reopen, petitioners’ due process claim fails
because they have not established prejudice. See Lata v. INS, 204 F.3d 1241, 1246
(9th Cir. 2000) (requiring prejudice to prevail on a due process claim). We lack
jurisdiction to consider any additional challenge to the BIA’s decision not to sua
sponte reopen proceedings. See Mejia-Hernandez v. Holder, 633 F.3d 818, 823-24
(9th Cir. 2011).
PETITION FOR REVIEW DENIED in part; DISMISSED in part.
2 08-72070