Buenrostro-Lomeli v. Gonzales

MEMORANDUM ^**

Jose Antonio Buenrostro-Lomeli, a native and citizen of Mexico, petitions for review of an order of the Board of Immigration Appeals (“BIA”) denying his motions to reopen and reconsider. We dismiss in part and deny in part the petition for review.

I. Motion to Reopen

We lack jurisdiction to review the denial of Buenrostro-Lomeli’s November 2003 motion to reopen, because he filed this petition for review more than thirty days after the BIA’s decision. 8 U.S.C. § 1252(b)(1).

II. Motion to Reconsider

The BIA properly construed Buenrostro-Lomeli’s March 2004 motion to reconsider in accordance with its underlying purpose when it treated it as both a motion to reconsider and a motion to reopen. See Mohammed v. Gonzales, 400 F.3d 785, 792 (9th Cir.2005) (BIA properly construed motion to reconsider as motion to reopen). The motion both requested that the BIA reconsider its legal determination that Buenrostro-Lomeli was inadmissible and presented new evidence that would entitle him to relief from deportation. 8 C.F.R. § 1003.2(b)—(c) (explaining requirements for motions to reopen and reconsider). We review the BIA’s denial of both motions for abuse of discretion. Cano-Merida v. INS, 311 F.3d 960, 964 (9th Cir. 2002).

A. Whether the BIA committed legal error requiring reconsideration

Buenrostro-Lomeli argues that the BIA abused its discretion in denying his motion to reconsider, because the BIA erred in finding him inadmissible for willfully misrepresenting a material fact in violation of 8 U.S.C. § 1182(a)(6)(C)(i). While seeking cancellation of removal, Buenrostro-Lomeli stated falsely, in his written application for relief and upon direct examination at the hearing before the Immigration Judge (“IJ”), that he had never been arrested for, or convicted of, any criminal activity. Buenrostro-Lomeli maintained this misrepresentation three times on cross-examination, and conceded his prior conviction for burglary only when confronted with the details of his arrest. The IJ found that Buenrostro-Lomeli lacked good moral character, primarily because he misrepresented his criminal history,¹ and accordingly found him ineligible for cancellation of removal. See 8 U.S.C. § 1229b(b)(l) (applicant for cancellation of removal must show that he is of good moral character). We therefore conclude that the BIA did not abuse its discretion in subsequently finding Buenrostro-Lomeli inadmissible for willfully misrepresenting a material fact in order to obtain immigration benefits, and in denying reopening on that ground.

The BIA also had properly concluded that Buenrostro-Lomeli was ineligible for adjustment of status because he faded to show that he was entitled to a waiver of inadmissibility. Buenrostro-Lomeli bore the burden of establishing his admissibility in order to demonstrate prima facie eligibility for adjustment of status. See Limsico v. INS, 951 F.2d 210, 213 (9th Cir.1991) (applicant filing motion to reopen must establish prima facie eligibility for the underlying relief requested); 8 U.S.C. § 1255 (an applicant for adjustment of status must be admissible to the United States). Buenrostro-Lomeli was on notice of his inadmissibility because he had been denied cancellation of removal for giving false testimony to obtain an immigration benefit. Accordingly, the BIA did not err in finding that Buenrostro-Lomeli’s failure to submit a waiver was fatal to his initial motion to reopen. See Matter of Lett, 17 I. & N. Dec. 312, 313-14 (BIA 1980) (alien who previously had been found deportable could not reopen proceedings and seek adjustment of status because he did not apply for waiver of inadmissibility).

Because the BIA committed no legal error in denying reopening, it did not abuse its discretion in denying Buenrostro-Lomeli’s motion for reconsideration of that denial.

B. Whether the BIA erroneously denied Buenrostro-Lomeli’s second motion to reopen

Finally, Buenrostro-Lomeli argues that the BIA abused its discretion in denying the portion of his March 2004 motion that was construed as a motion to reopen. A party may file only one motion to reopen removal proceedings. 8 C.F.R. § 1003.2(c)(2). Because Buenrostro-Lomeli previously had filed a motion to reopen requesting adjustment of status, we conclude that the BIA’s denial of the second motion was not an abuse of discretion.

PETITION FOR REVIEW DENIED IN PART, DISMISSED IN PART.

** This disposition is not appropriate for publication and is not precedent except as provided by 9th Cir. R. 36-3.

1 . The IJ found that Buenrostro-Lomeli "compounded” any problems created by his criminal history by failing to admit his arrest and by failing to respond with the truth when given opportunities to do so both on direct and cross-examination. Although the IJ’s adverse moral character determination relied primarily on Buenrostro-Lomeli’s misrepresentations, the fact that he had a criminal history was a factor the IJ considered. Indeed, the IJ could have found that Buenrostro-Lomeli lacked good moral character because of his criminal history alone. See Kalaw v. INS, 133 F.3d 1147, 1151 (9th Cir.1997) (certain categories of individuals, such as aggravated felons, are per se considered not to have good moral character, while others may be found ineligible in the discretion of the Attorney General). Thus, whether Buenrostro-Lomeli had ever been arrested or convicted of a crime was a fact material to his eligibility for cancellation of removal.