FILED
NOT FOR PUBLICATION JUN 02 2010
MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U .S. C O U R T OF APPE ALS
FOR THE NINTH CIRCUIT
EZEQUIEL MIRAMONTES-ARTEAGA, No. 07-73473
Petitioner, Agency No. A035-789-677
v.
MEMORANDUM *
ERIC H. HOLDER, Jr., Attorney General,
Respondent.
On Petition for Review of an Order of the
Board of Immigration Appeals
Submitted May 25, 2010 **
Before: CANBY, THOMAS, and W. FLETCHER, Circuit Judges.
Ezequiel Miramontes-Arteaga, a native and citizen of Mexico, petitions for
review of the Board of Immigration Appeals’ (“BIA”) order denying his motion to
reopen and dismissing his appeal from an immigration judge’s (“IJ”) decision
*
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).
granting the government’s motion to rescind. We have jurisdiction pursuant to 8
U.S.C. § 1252. We review for abuse of discretion the denial of a motion to reopen
and de novo constitutional and legal issues. Avila-Sanchez v. Mukasey, 509 F.3d
1037, 1039-40 (9th Cir. 2007). We deny the petition for review.
The agency correctly determined that the IJ lacked jurisdiction to entertain
Miramontes-Arteaga’s second motion to reopen because jurisdiction remained with
the BIA following the BIA’s order dismissing Miramontes-Arteaga’s prior appeal.
See 8 C.F.R. §§ 1003.2(a), 1003.23(b)(1).
Because Miramontes-Arteaga’s 1998 deportation order was lawful when he
was deported, the BIA did not err in concluding that Miramontes-Arteaga failed to
demonstrate a “gross miscarriage of justice at the prior proceeding.”
Ramirez-Juarez v. INS, 633 F.2d 174, 175-76 (9th Cir. 1980) (per curiam); see also
Alavarenga-Villalobos v. Ashcroft, 271 F.3d 1169, 1172-73 (9th Cir. 2001); Avila-
Sanchez, 509 F.3d at 1040-41. Accordingly, the BIA did not abuse its discretion in
denying Miaramontes-Arteaga’s motion to reopen. See Ahwazi v. INS, 751 F.2d
1120, 1122 (9th Cir. 1985) (we will uphold the BIA’s denial of a motion to reopen
“unless it is arbitrary, irrational, or contrary to law”).
Miramontes-Arteaga’s remaining contentions are unpersuasive.
PETITION FOR REVIEW DENIED.
2 07-73473