FILED
NOT FOR PUBLICATION MAR 22 2011
MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U .S. C O U R T OF APPE ALS
FOR THE NINTH CIRCUIT
MARGARITA VIZCARRA DE No. 08-74362
BASILIO,
Agency No. A077-342-306
Petitioner,
v. MEMORANDUM *
ERIC H. HOLDER, Jr., Attorney General,
Respondent.
On Petition for Review of an Order of the
Board of Immigration Appeals
Submitted March 8, 2011 **
Before: FARRIS, LEAVY, and BYBEE, Circuit Judges.
Margarita Vizcarra de Basilio, a native and citizen of Mexico, petitions for
review of the Board of Immigration Appeals’ (“BIA”) order dismissing her appeal
from an immigration judge’s (“IJ”) order denying her motion to reopen removal
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, review for
substantial evidence the agency’s factual findings, and review de novo questions of
law. Hamazaspyan v. Holder, 590 F.3d 744, 747 (9th Cir. 2009). We deny the
petition for review.
The agency did not abuse its discretion in denying Vizcarra de Basilio’s
motion to reopen because the evidence Vizcarra de Basilio submitted with her
motion does not compel the conclusion that she suffered from a serious illness
sufficient to establish an exceptional circumstance that would excuse her failure to
appear. See Celis-Castellano v. Ashcroft, 298 F.3d 888, 891-92 (9th Cir. 2002).
The BIA did not err by declining to consider the new evidence Vizcarra de
Basilio submitted on appeal. See 8 C.F.R. § 1003.1(d)(3)(iv); see also Matter of
Grijalva, 21 I. & N. Dec. 27, 36 (BIA 1995) (the BIA will not remand to the IJ for
consideration of evidence submitted on appeal that was available and could have
been presented along with a motion to reopen filed with the IJ).
PETITION FOR REVIEW DENIED.
2 08-74362