Opinion
No. 05-77410.
Argued and Submitted February 9, 2010.
Filed March 26, 2010.
Martin Avila Robles, San Francisco, CA, for Petitioners.
Christopher John Stender, Esquire, Immigration Practice Group, A Professional Corporation, San Francisco, CA, for Satpal Singh Chawla.
Richard M. Evans, Esquire, Assistant Director, Marion Guyton, Esquire, Trial, OIL, DOJ — U.S. Department of Justice, Civil Division/Office of Immigration Litigation, Washington, DC, 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 Nos. A077-427-104, A077-427-105, A077-427-108.
Before: O'SCANNLAIN, TROTT and PAEZ, Circuit Judges.
MEMORANDUM
This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3.
Satpal Singh Chawla ("Chawla"), his wife Jasbir Kaur, and his son Inderpreet Singh Chawla (collectively "Petitioners") petition for review of the Board of Immigration Appeals' ("BIA") denial of their motion to reopen. Our jurisdiction is controlled by 8 U.S.C. § 1252. We review the denial of a motion to reopen for abuse of discretion. Cano-Merida v. INS, 311 F.3d 960, 964 (9th Cir. 2002). We deny in part and dismiss in part the petition for review.
In Chawla v. Holder, 599 F.3d 998 (9th Cir. 2010), Petitioners petition for review of the BIA's decision affirming an immigration judge's denial of Chawla's applications for asylum, withholding of removal, and Convention Against Torture relief. We address that petition in a separate, published opinion filed concurrently with this memorandum disposition.
Petitioners argue that an immigration judge violated their rights to due process by failing to adequately inform them of their appeal rights. Because Petitioners argued this issue to the BIA in their motion to reopen, their "due process challenge" is properly characterized as a challenge to the BIA's denial of their motion to reopen.
The BIA did not abuse its discretion in denying Petitioners' motion to reopen because Petitioners failed to show that the evidence they submitted in support of their motion to reopen was previously unavailable. See 8 C.F.R. § 1003.2(c)(1) (requiring that evidence in support of a motion to reopen be material and previously unavailable).
Petitioners also argue that they were denied due process because Chawla was provided with a biased immigration judge and because of a faulty transcript. Because Petitioners failed to raise these procedural due process challenges before the BIA, they are not exhausted, and we lack jurisdiction to review them. See Barron v. Ashcroft, 358 F.3d 674, 676-78 (9th Cir. 2004) (holding that a due process challenge must be exhausted when it involves a procedural error).