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Bernal v. Mukasey

United States Court of Appeals, Ninth Circuit
Nov 21, 2007
No. 05-75108 (9th Cir. Nov. 21, 2007)

Opinion

No. 05-75108.

Submitted November 13, 2007.

The panel unanimously finds this case suitable for decision without oral argument. See Fed.R.App.P. 34(a)(2).

November 21, 2007.

On Petition for Review of an Order of the Board of Immigration Appeals, Agency No. A79-538-013.

Before: TROTT, W. FLETCHER, and CALLAHAN, Circuit Judges.


MEMORANDUM

This disposition is not appropriate for publication and is not precedent except as provided by 9th Cir. R. 36-3.


Pascual Aouilino Gayoso Bernal, a native and citizen of Mexico, petitions pro se for review of the Board of Immigration Appeals' ("BIA") order denying his motion to reconsider. To the extent we have jurisdiction, it is pursuant to 8 U.S.C. § 1252. We review for abuse of discretion the denial of a motion to reconsider. See Oh v. Gonzales, 406 F.3d 611, 612 (9th Cir. 2005). We deny in part and dismiss in part the petition for review.

The BIA properly construed Gayoso Bernal's motion to reopen as a motion to reconsider because the motion did not include new evidence. See 8 C.F.R. § 1003.2(c)(1). The BIA was within its discretion in denying the motion to reconsider because the motion failed to identify any error of fact or law in the BIA's prior decision affirming the IJ's order denying cancellation of removal based on physical presence grounds. See 8 C.F.R. § 1003.2(b)(1); Socop-Gonzalez v. INS, 272 F.3d 1176, 1180 n. 2 (9th Cir. 2001) (en banc); see also Landin-Zavala v. Gonzales, 488 F.3d 1150, 1153 (9th Cir. 2007) (holding that an executed order of exclusion and subsequent deportation terminates continuous physical presence).

We lack jurisdiction to review the BIA's June 7, 2005 order upholding the denial of Gayoso Bernal's cancellation application because he failed to timely petition this court for review of that decision. See Singh v. INS, 315 F.3d 1186, 1188 (9th Cir. 2003).

PETITION FOR REVIEW DENIED in part; DISMISSED in part.


Summaries of

Bernal v. Mukasey

United States Court of Appeals, Ninth Circuit
Nov 21, 2007
No. 05-75108 (9th Cir. Nov. 21, 2007)
Case details for

Bernal v. Mukasey

Case Details

Full title:PASCUAL AOUILINO GAYOSO BERNAL, a/k/a Gustavo Aguilar-Bustos, Petitioner…

Court:United States Court of Appeals, Ninth Circuit

Date published: Nov 21, 2007

Citations

No. 05-75108 (9th Cir. Nov. 21, 2007)