Opinion
No. 05-76453.
The panel unanimously finds this case suitable for decision without oral argument. See Fed.R.App.P. 34(a)(2).
Filed November 25, 2008.
Alejandro Garcia, Esquire, City of Commerce, CA, for Petitioner.
CAC-District Counsel, Esquire, Office of the District Counsel Department of Homeland Security, Los Angeles, CA, Marion E. Guyton, Esquire, 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 No. A078-001-369.
Before: WALLACE, LEAVY, and THOMAS, Circuit Judges.
This disposition is not appropriate for publication and is not precedent except as provided by 9th Cir. R. 36-3.
Lorenzo Baltazar Fragoso-Garcia, a native and citizen of Mexico, petitions for review of the Board of Immigration Appeals' ("BIA") order denying his motion to reconsider its prior order denying his motion to reopen to seek adjustment of status. We have jurisdiction under 8 U.S.C. § 1252. We review for an abuse of discretion the denial of a motion to reconsider, Morales Apolinar v. Mukasey, 514 F.3d 893, 895 (9th Cir. 2008), and de novo claims of equal protection violations, Sandoval-Luna v. Mukasey, 526 F.3d 1243, 1246 (9th Cir. 2008). We deny the petition for review.
The BIA did not abuse its discretion in denying Fragoso-Garcia's motion to reconsider where Fragoso-Garcia is statutorily ineligible for adjustment of status. See 8 U.S.C. § 1229c(d)(1)(B) (alien who fails to abide by grant of voluntary departure shall be ineligible for designated types of status adjustment for 10 years). In light of our conclusion that Fragoso-Garcia is ineligible for adjustment of status, we need not reach his contention that his case should have been reopened pursuant to Matter of Velarde-Pacheco, 23 I. N. Dec. 253 (BIA 2002) (en banc).
Fragoso-Garcia's contention that 8 U.S.C. § 1229c(d) violates his right to equal protection is unavailing. See de Martinez v. Ashcroft, 374 F.3d 759, 764 (9th Cir. 2004).