ABARCA DELGADO v. BARR (2019)

United States Court of Appeals, Ninth Circuit.

Rosa ABARCA DELGADO, Petitioner, v. William P. BARR, Attorney General, Respondent.

No. 15-72823

Decided: April 23, 2019

Before: McKEOWN, BYBEE, and OWENS, Circuit Judges.

Judith Leslie Wood, Esquire, Attorney, Law Office of Judith L. Wood, Los Angeles, CA, for Petitioner Janette L. Allen, Esquire, Trial Attorney, Anthony Cardozo Payne, Senior Litigation Counsel, Colette Jabes Winston, Esquire, Attorney, DOJ - U.S. Department of Justice, Civil Division/Office of Immigration Litigation, Washington, DC, Chief Counsel ICE, Office of the Chief Counsel, Department of Homeland Security, San Francisco, CA, for Respondent

MEMORANDUM **

Rosa Abarca Delgado, a native and citizen of Mexico, petitions for review of the Board of Immigration Appeals’ (“BIA”) order denying her motion to reopen. Our jurisdiction is governed by 8 U.S.C. § 1252. We review for abuse of discretion the denial of a motion to reopen. Mohammed v. Gonzales, 400 F.3d 785, 791 (9th Cir. 2005). We deny in part and dismiss in part the petition for review.

The BIA did not abuse its discretion in denying the motion as untimely, where the motion was filed more than eleven years after the order of removal became final, and Abarca Delgado has not established that her motion falls within any exceptions to the filing deadline. See 8 C.F.R. § 1003.2(c)(3)(i)-(iv).

We lack jurisdiction to consider Abarca Delgado’s unexhausted contention that the BIA should have granted reopened sua sponte. See Tijani v. Holder, 628 F.3d 1071, 1080 (9th Cir. 2010) (the court lacks jurisdiction to consider legal claims not presented in an alien’s proceedings before the agency).

PETITION FOR REVIEW DENIED in part; DISMISSED in part.

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