Carlos Castro-Ramirez v. Eric H. Holder Jr.

FILED
NOT FOR PUBLICATION JAN 29 2015
MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
CARLOS CASTRO-RAMIREZ, No. 09-70017
Petitioner, Agency No. A074-149-446
v.
MEMORANDUM*
ERIC H. HOLDER, Jr., Attorney General,
Respondent.
On Petition for Review of an Order of the
Board of Immigration Appeals
Submitted January 21, 2015**
Before: CANBY, GOULD, and N.R. SMITH, Circuit Judges.
Carlos Castro-Ramirez, a native and citizen of Guatemala, petitions pro se
for review of the Board of Immigration Appeals’ order dismissing his appeal from
an immigration judge’s decision denying his motion to reopen deportation
proceedings conducted in absentia. We have jurisdiction under 8 U.S.C. § 1252.
*
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).
We review for abuse of discretion the denial of a motion to reopen. Arrieta v. INS,
117 F.3d 429, 430 (9th Cir. 1997) (per curiam). We deny the petition for review.
The agency did not abuse its discretion in denying Castro-Ramirez’s motion
to reopen on the ground that notice was proper and Castro-Ramirez failed to rebut
the strong presumption of effective service arising from the service of his hearing
notice by certified mail. See id. at 431; Matter of Grijalva, 21 I. & N. Dec. 27, 37
(BIA 1995).
The agency also did not abuse its discretion in denying as untimely Castro-
Ramirez’s motion to reopen to apply for adjustment of status, where he was
required to file that motion by September 30, 1996, but filed it more than 10 years
later. See 8 C.F.R. § 1003.23(b)(1) (a motion to reopen deportation or exclusion
proceedings must be filed no later than 90 days after a final order or on or before
September 30, 1996, whichever is later); Matter of M-S-, 22 I. & N. Dec. 349, 356-
57 (BIA 1998) (a motion to reopen an in absentia order to apply for adjustment of
status is subject to requirements of 8 C.F.R. § 1003.23(b)(1)).
Castro-Ramirez’s remaining contentions are unavailing.
This dismissal is without prejudice to petitioner’s seeking prosecutorial
discretion or deferred action from the Department of Homeland Security. See
Reno v. American-Arab Anti-Discrimination Committee (AADC), 525 U.S. 471,
2 09-70017
483-85 (1999) (stating that prosecutorial discretion by the agency can be granted at
any stage, including after the conclusion of judicial review).
PETITION FOR REVIEW DENIED.
3 09-70017