FILED
NOT FOR PUBLICATION JAN 29 2015
MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
LORENA G. HERNANDEZ, No. 13-72098
Petitioner, Agency No. A094-200-338
v.
MEMORANDUM*
ERIC H. HOLDER, Jr., Attorney General,
Respondent.
On Petition for Review of an Order of the
Board of Immigration Appeals
Submitted January 21, 2015**
Before: CANBY, GOULD, and N.R. SMITH, Circuit Judges.
Lorena G. Hernandez, a native and citizen of El Salvador, petitions for
review of the Board of Immigration Appeals’ (“BIA”) order denying her motion to
reopen removal proceedings conducted in absentia. Our jurisdiction is governed
by 8 U.S.C. § 1252. We review for abuse of discretion the BIA’s denial of a
*
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).
motion to reopen. Najmabadi v. Holder, 597 F.3d 983, 986 (9th Cir. 2010). We
deny in part and dismiss in part the petition for review.
The agency did not abuse its discretion by denying Hernandez’s motion to
reopen as untimely, see 8 C.F.R. § 1003.23(b)(4)(ii), and Hernandez failed to
establish materially changed country conditions in El Salvador warranting
reopening. See 8 C.F.R. § 1003.2(c)(3)(ii); Najmabadi, 597 F.3d at 986-87.
Finally, we lack jurisdiction to review the BIA’s discretionary decision to
not reopen removal proceedings sua sponte. See Mejia-Hernandez v. Holder, 633
F.3d 818, 823-24 (9th Cir. 2011).
This dismissal is without prejudice to petitioner’s seeking prosecutorial
discretion or deferred action from the Department of Homeland Security. See
Reno v. American-Arab Anti-Discrimination Committee (AADC), 525 U.S. 471,
483-85 (1999) (stating that prosecutorial discretion by the agency can be granted at
any stage, including after the conclusion of judicial review).
PETITION FOR REVIEW DENIED in part; DISMISSED in part.
2 13-72098