FILED
NOT FOR PUBLICATION JUL 27 2015
MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
ANDRES ORTEGA-FLORES, No. 13-73228
Petitioner, Agency No. A095-728-413
v.
MEMORANDUM*
LORETTA E. LYNCH, Attorney General,
Respondent.
On Petition for Review of an Order of the
Board of Immigration Appeals
Submitted July 21, 2015**
Before: CANBY, BEA, and MURGUIA, Circuit Judges.
Andres Ortega-Flores, a native and citizen of Mexico, petitions pro se for
review of the Board of Immigration Appeals’ (“BIA”) order denying his motion to
reconsider and reopen. Our jurisdiction is governed by 8 U.S.C. § 1252. We
review for abuse of discretion the denial of a motion to reopen. Mohammed v.
*
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).
Gonzales, 400 F.3d 785, 791 (9th Cir. 2005). We dismiss in part and deny in part
the petition for review.
We lack jurisdiction to review Ortega-Flores’ motion to reconsider because
we cannot review the BIA’s discretionary hardship determination. See Vilchiz-
Soto v. Holder, 688 F.3d 642, 644 (9th Cir. 2012) (order) (“[T]he BIA’s denial of
the motion to reconsider falls outside the court’s jurisdiction because the court
cannot reconsider the discretionary, fact-based determination that petitioners failed
to demonstrate the requisite hardship.”). Although the court retains jurisdiction
over colorable questions of law and constitutional claims, Ortega-Flores’
contention that the BIA did not consider all of the hardship factors is not supported
by the record and his equal protection claim is foreclosed by our case law. See
Martinez-Rosas v. Gonzales, 424 F.3d 926, 930 (9th Cir. 2005) (“To be colorable
. . . the claim must have some possible validity.” (internal quotations omitted));
Jimenez-Angeles v. Ashcroft, 291 F.3d 594, 602-03 (9th Cir. 2002) (rejecting equal
protection claim regarding the Nicaraguan Adjustment and Central American
Relief Act).
The BIA did not abuse its discretion in denying Ortega-Flores’ motion to
reopen where the evidence he submitted was available and could have been
2 13-73228
presented at the time of his previous hearing. See 8 C.F.R. § 1003.2(c)(1);
Najmabadi v. Holder, 597 F.3d 983, 986 (9th Cir. 2010).
To the extent Ortega-Flores seeks review of the BIA’s May 28, 2013, order
dismissing his appeal, we lack jurisdiction because this petition for review is not
timely as to that order. See 8 U.S.C. § 1252(b)(1); Stone v. INS, 514 U.S. 386, 405
(1995).
PETITION FOR REVIEW DISMISSED in part; DENIED in part.
3 13-73228