Jose Sedeno-Arroyo v. Eric H. Holder Jr., No. 08-71820 (9th Cir. 2010)

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FILED NOT FOR PUBLICATION UNITED STATES COURT OF APPEALS SEP 30 2010 MOLLY C. DWYER, CLERK U .S. C O U R T OF APPE ALS FOR THE NINTH CIRCUIT JOSE JUAN SEDENO-ARROYO, Petitioner, No. 08-71820 Agency No. A096-362-494 v. MEMORANDUM * ERIC H. HOLDER, Jr., Attorney General, Respondent. On Petition for Review of an Order of the Board of Immigration Appeals Submitted September 13, 2008 ** Before: SILVERMAN, CALLAHAN, and N.R. SMITH, Circuit Judges. Jose Juan Sedeno-Arroyo, a native and citizen of Mexico, petitions for review of the Board of Immigration Appeals ( BIA ) order denying his motion to reopen. Our jurisdiction is governed by 8 U.S.C. § 1252. We review for abuse of * This disposition is not appropriate for publication and is not precedent except as provided by 9th Cir. R. 36-3. ** The panel unanimously concludes this case is suitable for decision without oral argument. See Fed. R. App. P. 34(a)(2). discretion the denial of a motion to reopen. Cano-Merida v. INS, 311 F.3d 960, 964 (9th Cir. 2002). We deny in part and dismiss in part the petition for review. The BIA did not abuse its discretion in denying Sedeno-Arroyo s motion to reopen on the grounds that Sedeno-Arroyo failed to demonstrate that the evidence he submitted with his motion was not available and could not have been discovered or presented at his hearing. See 8 C.F.R. § 1003.2(c)(1); see also Goel v. Gonzales, 490 F.3d 735, 738 (9th Cir.2007) (per curiam) (evidence capable of being discovered prior to the hearing cannot serve as the basis for a motion to reopen). We lack jurisdiction to consider Sedeno-Arroyo s contentions regarding errors in the BIA s January 23, 2008, order because he failed to raise these contentions before the BIA. See Barron v. Ashcroft, 358 F.3d 674, 678 (9th Cir. 2004) (generally requiring exhaustion of claims before the BIA). PETITION FOR REVIEW DENIED in part; DISMISSED in part. 2 08-71820

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