Opinion
No. 13-72098
01-29-2015
LORENA G. HERNANDEZ, Petitioner, v. ERIC H. HOLDER, Jr., Attorney General, Respondent.
NOT FOR PUBLICATION
Agency No. A094-200-338 MEMORANDUM On Petition for Review of an Order of the Board of Immigration Appeals Before: CANBY, GOULD, and N.R. SMITH, Circuit Judges.
This disposition is not appropriate for publication and is not precedent except as provided by 9th Cir. R. 36-3.
Lorena G. Hernandez, a native and citizen of El Salvador, petitions for review of the Board of Immigration Appeals' ("BIA") order denying her motion to reopen removal proceedings conducted in absentia. Our jurisdiction is governed by 8 U.S.C. § 1252. We review for abuse of discretion the BIA's denial of a motion to reopen. Najmabadi v. Holder, 597 F.3d 983, 986 (9th Cir. 2010). We deny in part and dismiss in part the petition for review.
The agency did not abuse its discretion by denying Hernandez's motion to reopen as untimely, see 8 C.F.R. § 1003.23(b)(4)(ii), and Hernandez failed to establish materially changed country conditions in El Salvador warranting reopening. See 8 C.F.R. § 1003.2(c)(3)(ii); Najmabadi, 597 F.3d at 986-87.
Finally, we lack jurisdiction to review the BIA's discretionary decision to not reopen removal proceedings sua sponte. See Mejia-Hernandez v. Holder, 633 F.3d 818, 823-24 (9th Cir. 2011).
This dismissal is without prejudice to petitioner's seeking prosecutorial discretion or deferred action from the Department of Homeland Security. See Reno v. American-Arab Anti-Discrimination Committee (AADC), 525 U.S. 471, 483-85 (1999) (stating that prosecutorial discretion by the agency can be granted at any stage, including after the conclusion of judicial review).
PETITION FOR REVIEW DENIED in part; DISMISSED in part.