Ebrahim Kalatehe v. Eric Holder

FILED
NOT FOR PUBLICATION MAY 20 2013

MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U .S. C O U R T OF APPE ALS

FOR THE NINTH CIRCUIT

EBRAHIM KALATEHE, No. 11-71752

Petitioner, Agency No. A078-908-098

v.
MEMORANDUM *
ERIC H. HOLDER, Jr., Attorney General,

Respondent.

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

Submitted May 14, 2013 **

Before: LEAVY, THOMAS, and MURGUIA, Circuit Judges.

Ebrahim Kalatehe, a native and citizen of Iran, petitions for review of the

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

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

for abuse of discretion the denial of a motion to reopen. Najmabadi v. Holder, 597

*
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).
F.3d 983, 986 (9th Cir. 2010). We deny in part, dismiss in part, and grant in part

the petition for review, and we remand.

The BIA did not abuse its discretion in denying Kalatehe’s motion as

untimely because the motion was filed over four years after the agency’s final

order, see 8 C.F.R. § 1003.2(c)(2), and the BIA considered the record and acted

within its broad discretion in determining that the evidence was insufficient to

establish prima facie eligibility for deferral of removal under the Convention

Against Torture. See Mendez-Gutierrez v. Gonzales, 444 F.3d 1168, 1172 (9th Cir.

2006) (“vague and conclusory allegations” insufficient to establish prima facie

eligibility). We reject Kalatehe’s contentions that the BIA failed to consider or

inadequately considered evidence, and that the BIA applied the wrong legal

standard.

We lack jurisdiction to review Kalatehe’s challenge to his underlying in

absentia removal order, because this petition for review is untimely as to that

order. See 8 U.S.C. § 1252(b)(1); Membreno v. Gonzales, 425 F.3d 1227, 1229

(9th Cir. 2005). Contrary to Kalatehe’s assertion, the BIA did not elect to revisit

the immigration judge’s decision.

In assessing Kalatehe’s motion to reopen, however, the BIA did not address

Kalatehe’s asylum and withholding of removal claims. See Brezilien v. Holder,

2 11-71752
569 F.3d 403, 412 (9th Cir. 2009) (BIA is not free to ignore arguments raised by a

petitioner). Accordingly, we grant the petition as to Kalatehe’s asylum and

withholding of removal claims and remand for the agency to consider his motion to

reopen as to these claims. See INS v. Ventura, 537 U.S. 12, 16-18 (2002) (per

curiam).

Each party shall bear its own costs for this petition for review.

PETITION FOR REVIEW DENIED in part; DISMISSED in part;

GRANTED in part; REMANDED.

3 11-71752