NOT FOR PUBLICATION FILED
UNITED STATES COURT OF APPEALS DEC 20 2017
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
ARMANDO SEVERINO-ZUNIGA, No. 17-71335
Petitioner, Agency No. A079-611-901
v.
MEMORANDUM*
JEFFERSON B. SESSIONS III, Attorney
General,
Respondent.
On Petition for Review of an Order of the
Board of Immigration Appeals
Submitted December 18, 2017**
Before: WALLACE, SILVERMAN, and BYBEE, Circuit Judges.
Armando Severino-Zuniga, a native and citizen of Argentina, petitions for
review of the Board of Immigration Appeals’ (“BIA”) order dismissing his appeal
from an immigration judge’s (“IJ”) decision granting his request to withdraw his
application for admission, and the BIA’s order regarding his motions to reopen
*
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).
removal proceedings. Our jurisdiction is governed by 8 U.S.C. § 1252. We review
de novo legal determinations, and for substantial evidence factual findings.
Wakkary v. Holder, 558 F.3d 1049, 1056 (9th Cir. 2009). We review for abuse of
discretion the denial of a motion to remand and a motion to reopen. Konstantinova
v. INS, 195 F.3d 528, 529 (9th Cir. 1999). We dismiss in part and deny in part the
petition for review.
We do not consider the materials Severino-Zuniga submitted with his
opening brief that are not part of the administrative record. See Fisher v. INS, 79
F.3d 955, 963-64 (9th Cir.1996) (en banc).
The BIA properly dismissed as untimely Severino-Zuniga’s appeal from the
IJ’s grant of his request to withdraw his application for admission where he filed it
over three months after the IJ’s decision and did not provide any explanation for
the late filing. See 8 C.F.R. § 1003.38(b)-(c). Thus, we lack jurisdiction to review
Severino-Zuniga’s due process contentions. See Barron v. Ashcroft, 358 F.3d 674,
678 (9th Cir. 2004).
The BIA did not abuse its discretion by affirming the IJ’s denial of Severino-
Zuniga’s motion to reopen. See Mohammed, 400 F.3d at 791-92 (standard of
review); Lata v. INS, 204 F.3d 1241, 1246 (9th Cir. 2000) (requiring error to
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prevail on a due process claim)
Finally, the BIA did not abuse its discretion by declining to remand
Severino-Zuniga’s case where he failed to offer evidence that was unavailable and
incapable of being discovered or presented at the former hearing. See 8 C.F.R. §
1003.2(c)(1); Goel v. Gonzales, 490 F.3d 735, 739 (9th Cir. 2007) (BIA did not
abuse its discretion where evidence proffered was not previously unavailable).
PETITION FOR REVIEW DISMISSED in part; DENIED in part.
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