FILED
NOT FOR PUBLICATION JUN 22 2011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
JOSE MAURICIO CRUZ-CONTRERAS, No. 09-74112
Petitioner, Agency No. A097-902-767
v.
MEMORANDUM *
ERIC H. HOLDER, Jr., Attorney General,
Respondent.
On Petition for Review of an Order of the
Board of Immigration Appeals
Submitted June 15, 2011 **
Before: CANBY, O’SCANNLAIN, and FISHER, Circuit Judges.
Jose Mauricio Cruz-Contreras, a native and citizen of Honduras, petitions
pro se for review of the Board of Immigration Appeals’ (“BIA”) order dismissing
his appeal from an immigration judge’s decision denying his motion to reopen
removal proceedings conducted in absentia. We have jurisdiction under 8 U.S.C.
*
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).
§ 1252. We review for abuse of discretion the denial of a motion to reopen, Lin v.
Holder, 588 F.3d 981, 984 (9th Cir. 2009), and we deny the petition for review.
The agency did not abuse its discretion in denying Cruz-Contreras’s motion
to reopen to rescind his removal order, where Cruz-Contreras did not allege a lack
of notice of the hearing or file his motion within 180 days of the order. See 8
U.S.C. § 1229a(b)(5)(C)(i),(ii). Nor did the agency abuse its discretion in denying
the motion because Cruz-Contreras failed to establish changed circumstances. See
Toufighi v. Mukasey, 538 F.3d 988, 996-97 (9th Cir. 2008) (evidence must
demonstrate prima facie eligibility for relief warranting reopening based on
changed country conditions).
To the extent Cruz-Contreras contends that he should be permitted to file an
asylum application, this contention is foreclosed by Chen v. Mukasey, 524 F.3d
1028, 1032 (9th Cir. 2008), which held that an alien subject to a final removal
order may only reapply for asylum through a successful motion to reopen.
Cruz-Contreras’s contention that the BIA failed to articulate its reasoning is
not supported by the record.
We do not consider Cruz-Contreras’s contentions raised for the first time in
the opening brief, as those were not exhausted before the agency. See Barron v.
Ashcroft, 358 F.3d 674, 678 (9th Cir. 2004).
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Cruz-Contreras’s renewed request for a stay of removal is denied.
PETITION FOR REVIEW DENIED.
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