Olegario Soltero-Sanchez v. Eric Holder, Jr.

FILED
NOT FOR PUBLICATION JUN 02 2011

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

FOR THE NINTH CIRCUIT

OLEGARIO SOLTERO-SANCHEZ, No. 09-71236

Petitioner, Agency No. A026-720-111

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

Respondent.

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

Submitted May 4, 2011 **
Seattle, Washington

Before: SCHROEDER, McKEOWN, and CALLAHAN, Circuit Judges.

Olegario Soltero-Sanchez, native and citizen of Mexico, petitions for review

of the Board of Immigration Appeals’ (BIA) denial of his motion to reconsider,

after the BIA vacated an Immigration Judge’s grant of Soltero-Sanchez’s request

for a § 212(c) waiver as a matter of discretion. The BIA found that to the extent it

*
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).
could construe the motion for reconsideration as a motion to reopen, there was no

explanation why Soltero-Sanchez’s newly submitted psychological consultation

report regarding rehabilitation could not have been discovered or presented at his

removal hearing.

We have jurisdiction to review “whether the BIA applied the correct legal

standard in making its [discretionary] determination” even though we lack

jurisdiction to review the BIA’s underlying decision regarding whether Soltero-

Sanchez should be granted § 212(c) relief. Anaya-Ortiz v. Holder, 594 F.3d 673,

676 (9th Cir. 2010) (internal quotation marks omitted). We will reverse the BIA’s

denial of a motion for reconsideration or to reopen “only if the BIA acted

arbitrarily, irrationally, or contrary to law.” Mohammed v. Gonzales, 400 F.3d

785, 791 (9th Cir. 2005).

The BIA did not err in denying Soltero-Sanchez’s motion to reconsider

because his motion did not specify errors of fact or law in the BIA’s decision. 8

C.F.R. § 1003.2(b)(1) (“A motion to reconsider shall state the reasons for the

motion by specifying the errors of fact or law in the prior Board decision and shall

be supported by pertinent authority.”). The BIA also did not abuse its discretion in

denying Soltero-Sanchez’s motion to reopen that was based on the newly presented

psychological report. Soltero-Sanchez failed to show that the report was not

2
previously available. See 8 C.F.R. § 1003.2(c)(1) (“A motion to reopen

proceedings shall not be granted unless it appears to the Board that evidence

sought to be offered is material and was not available and could not have been

discovered or presented at the former hearing.”).

PETITION DENIED.