No. 08-71820.United States Court of Appeals, Ninth Circuit.
Page 199
Submitted September 13, 2008.[*]
Filed September 30, 2010.
Margarita Manduley, Esquire, Law Office of Margarita Manduley, Van Nuys, CA, for Petitioner.
Francis William Fraser, I, Esquire, Senior Litigation Counsel, OIL, Phillip Michael Truman, Marion Guyton, Esquire, Trial, DOJ-U.S. Department of Justice, Washington, DC, CAC-District Counsel, Esquire, Office of the District Counsel Department of Homeland Security, Los Angeles, CA, Ronald E. Lefevre Office of the District Counsel Department of Homeland Security, San Francisco, CA, for Respondent.
On Petition for Review of an Order of the Board of Immigration Appeals. Agency No. A096-362-494.
Before: SILVERMAN, CALLAHAN, and N.R. SMITH, Circuit Judges.
MEMORANDUM[**]
José Juan Sedeno-Arroyo, a native and citizen of Mexico, petitions for review of the Board of Immigration Appeals’ (“BIA”) order denying his motion to re-open. Our jurisdiction is governed by 8 U.S.C. § 1252. We review for abuse of discretion the denial of a motion to reopen. Cano-Merida v. INS, 311 F.3d 960, 964 (9th Cir. 2002). We deny in part and dismiss in part the petition for review.
The BIA did not abuse its discretion in denying Sedeno-Arroyo’s motion to reopen on the grounds that Sedeno-Arroyo failed to demonstrate that the evidence he submitted with his motion “was not available and could not have been discovered or presented” at his hearing. See 8 C.F.R. § 1003.2(c)(1) see also Goel v. Gonzales, 490 F.3d 735, 738 (9th Cir. 2007) (per curiam) (evidence capable of being discovered prior to the hearing cannot serve as the basis for a motion to reopen).
We lack jurisdiction to consider Sedeno-Arroyo’s contentions regarding errors in the BIA’s January 23, 2008, order because he failed to raise these contentions before the BIA. See Barron v. Ashcroft, 358 F.3d 674, 678 (9th Cir. 2004) (generally requiring exhaustion of claims before the BIA).
PETITION FOR REVIEW DENIED in part; DISMISSED inpart.
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