Lorena Hernandez v. Eric Holder, Jr.

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NOT FOR PUBLICATION JAN 29 2015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