Anival Analco Salado v. Jefferson Sessions

NOT FOR PUBLICATION FILED
UNITED STATES COURT OF APPEALS AUG 14 2017
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT

ANIVAL ANALCO SALADO, No. 16-70096

Petitioner, Agency No. A088-461-626

v.
MEMORANDUM*
JEFFERSON B. SESSIONS III, Attorney
General,

Respondent.

On Petition for Review of an Order of the
Board of Immigration Appeals

Submitted August 9, 2017**

Before: SCHROEDER, TASHIMA, and M. SMITH, Circuit Judges.

Anival Analco Salado, a native and citizen of Mexico, petitions for review

of the Board of Immigration Appeals’ (“BIA”) order denying his third motion to

reopen removal proceedings. Our jurisdiction is governed by 8 U.S.C. § 1252. We

review de novo questions of law. Ali v. Holder, 637 F.3d 1025, 1028-29 (9th Cir.

*
This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
**
The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
2011). We deny in part and dismiss in part the petition for review.

Our jurisdiction to review the BIA’s discretionary decision not to reopen

proceedings sua sponte is limited to contentions of legal or constitutional error.

See Bonilla v. Lynch, 840 F.3d 575, 588 (9th Cir. 2016) (“[T]his court has

jurisdiction to review Board decisions denying sua sponte reopening for the limited

purpose of reviewing the reasoning behind the decisions for legal or constitutional

error.”). The record does not support Analco Salado’s contentions that the BIA

failed to provide a reasoned explanation for its decision, properly consider all

factors, or review the record. See Najmabadi v. Holder, 597 F.3d 983, 990 (9th

Cir. 2010) (agency need not write an exegesis on every contention); Fernandez v.

Gonzales, 439 F.3d 592, 603 (9th Cir. 2006) (petitioner did not overcome the

presumption that the BIA did review the record).

To the extent Analco Salado contends the BIA’s denial of his third motion to

reopen violated his children’s constitutional rights, this contention is foreclosed by

Urbano de Malaluan v. INS, 577 F.2d 589, 594 (9th Cir. 1978) (rejecting the

contention that a parent’s “deportation order would amount to a de facto

deportation of the child and thus violate the constitutional rights of the child”).

We lack jurisdiction to consider Analco Salado’s requests for prosecutorial

discretion and administrative closure. See Vilchiz-Soto v. Holder, 688 F.3d 642,

644 (9th Cir. 2012) (order); Diaz-Covarrubias v. Mukasey, 551 F.3d 1114, 1120

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(9th Cir. 2009).

We lack jurisdiction to review Analco Salado’s challenges to the BIA’s

April 15, 2011, order dismissing his appeal from an immigration judge’s denial of

cancellation of removal because this petition for review is not timely as to that

order. See 8 U.S.C. § 1252(b)(1) (“The petition for review must be filed not later

than 30 days after the date of the final order of removal.”).

We do not consider the new evidence submitted with Analco Salado’s

opening brief. See 8 U.S.C. § 1252(b)(4)(A) (judicial review is limited to the

administrative record); Dent v. Holder, 627 F.3d 365, 371 (9th Cir. 2010) (stating

standard for review of out-of-record evidence).

PETITION FOR REVIEW DENIED in part; DISMISSED in part.

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