FILED
NOT FOR PUBLICATION FEB 14 2013
MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U .S. C O U R T OF APPE ALS
FOR THE NINTH CIRCUIT
JAIME RICARDO MONTOYA, No. 10-72847
Petitioner, Agency No. A070-966-451
v.
MEMORANDUM *
ERIC H. HOLDER, Jr., Attorney General,
Respondent.
On Petition for Review of an Order of the
Board of Immigration Appeals
Submitted February 11, 2013 **
Before: FERNANDEZ, TASHIMA, and WARDLAW, Circuit Judges.
Jaime Ricardo Montoya, a native and citizen of Guatemala, petitions for
review of the Board of Immigration Appeals’ (“BIA”) order denying his motion to
remand and dismissing his appeal from an immigration judge’s (“IJ”) decision
denying his motion to reopen. We have jurisdiction under 8 U.S.C. § 1252. We
*
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).
review for abuse of discretion the agency’s denial of a motion to reopen and a
motion to remand. Movsisian v. Ashcroft, 395 F.3d 1095, 1098 (9th Cir. 2005).
We deny the petition for review.
Contrary to Montoya’s contention, the BIA incorporated only that portion of
the IJ’s decision finding Montoya failed to establish changed circumstances in
Guatemala to qualify for the regulatory exception to the time limitation for filing a
motion to reopen. Our review is therefore limited to that portion of the IJ’s
decision. See Molina-Estrada v. INS, 293 F.3d 1089, 1093 (9th Cir. 2002). The
agency did not abuse its discretion in denying Montoya’s untimely motion to
reopen because Montoya did not demonstrate that the evidence he submitted with
his motion was material, new, and previously unavailable. See 8 C.F.R.
§ 1003.2(c)(1) (evidence offered with a motion to reopen must have been
unavailable and unable to have been discovered or presented at the former
hearing); see also Najmabadi v. Holder, 597 F.3d 983, 990 (9th. Cir. 2010)
(petitioner’s evidence lacked requisite materiality).
Further, the BIA did not abuse its discretion in denying Montoya’s motion to
remand because Montoya did not demonstrate the evidence he submitted was
previously unavailable and could not have been discovered. See Matter of
Grijalva, 21 I. & N. Dec. 27, 36 (BIA 1995) (the BIA will not remand to the IJ for
2 10-72847
consideration of evidence submitted on appeal that was available and could have
been presented along with a motion to reopen filed with the IJ).
In light of our disposition, we do not address Montoya’s remaining
arguments.
PETITION FOR REVIEW DENIED.
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