NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS FILED
FOR THE NINTH CIRCUIT AUG 13 2010
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FILBERTO PEREZ-VASQUEZ, No. 06-73324
Petitioner, Agency No. A73-928-463
v.
MEMORANDUM*
ERIC H. HOLDER, Jr., Attorney General,
Respondent.
On Petition for Review of an Order of the
Board of Immigration Appeals
Submitted April 14, 2010**
San Francisco, California
Before: SCHROEDER and RAWLINSON, Circuit Judges, and MOODY, District
Judge.***
*
This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
**
The panel unanimously finds this case suitable for decision without
oral argument. Fed. R. App. P. 34(a)(2).
***
The Honorable James Maxwell Moody, Senior United States District
Judge for the Eastern District of Arkansas, sitting by designation.
Filberto Perez-Vasquez ("Perez-Vasquez"), a native and citizen of Mexico,
petitions pro se for review of the Board of Immigration Appeals' decision adopting
and affirming an immigration judge's order granting a motion to reconsider by the
U.S. Department of Homeland Security ("DHS"). The Board of Immigration
Appeals (“BIA”) held that the Immigration Judge correctly determined upon
reconsideration that Perez-Vasquez’s second motion to reopen was number-barred
and that there was no procedural error when the Immigration Judge granted DHS’s
motion to reconsider. We have jurisdiction pursuant to 8 U.S.C. §1252. We review
for abuse of discretion. Toufighi v. Mukasey, 538 F.3d 988, 992 (9th Cir. 2008).
The BIA did not abuse its discretion in determining that the DHS properly
filed a motion to reconsider with the Immigration Judge. A party affected by a
decision of an immigration judge may appeal to the Board or file a motion to
reopen or reconsider with the immigration court. 8 C.F.R. §§1003.3 and 1003.23.
Further, the BIA did not abuse its discretion in its determination that the
Immigration Judge erroneously reopened the proceedings because the second
motion to reopen was number barred. An alien who is subject to a final order of
removal entered in absentia is limited to only one motion to reopen the removal
proceedings. 8 C.F.R. §1003.23(b)(4)(ii). We agree that the evidence presented
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by Petitioner failed to demonstrate postal delivery errors during the period in
question.
The petition for review is DENIED.
3