Unpublished Disposition, 899 F.2d 19 (9th Cir. 1972)

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US Court of Appeals for the Ninth Circuit - 899 F.2d 19 (9th Cir. 1972)


No. 88-7498.

United States Court of Appeals, Ninth Circuit.

Submitted March 16, 1990.* Decided March 21, 1990.

Before BROWNING, ALARCON and POOLE, Circuit Judges.


Andres Mendoza-Morales, a native and citizen of Mexico, petitions for review of the Board of Immigration Appeals' (BIA) denial of his motion to reopen his deportation proceedings. Mendoza-Morales contends that the BIA should have reopened the proceedings to allow him to apply for permanent resident status under section 249 of the Immigration and Nationality Act (INA), 8 U.S.C. § 1259. We have jurisdiction pursuant to 8 U.S.C. § 1105a(a). We affirm.

In cases in which the ultimate grant of relief sought is discretionary the BIA may deny a motion to reopen proceedings, even if the alien has satisfied the threshold statutory eligibility requirements, and determine that the movant would not be entitled to the discretionary grant of relief. INS v. Abudu, 485 U.S. 94, 105 (1988). We review such a denial for abuse of discretion. Id.; Mattis v. United States INS, 774 F.2d 965, 968 (9th Cir. 1985).

Mendoza-Morales contends that his deportation proceedings should be reopened so that he may establish eligibility for permanent resident status based on his residency in the United States since prior to January 1, 1972. The BIA found, however, that Mendoza-Morales is not entitled to this form of discretionary relief because he had achieved his eligibility by means of dilatory litigation tactics and by willfully failing to comply with a deportation order.

The BIA's decision denying the motion to reopen is supported by a reasoned explanation based on legitimate concerns present in the record. See Mattis, 774 F.2d at 968. The BIA may properly deny discretionary relief where eligibility for such relief exists only because of the alien's dilatory litigation tactics or willful failure to comply with deportation orders. INS v. Rios-Pineda, 471 U.S. 444, 449-51 (1985). See also Torres-Hernandez v. INS, 812 F.2d 1262, 1264 (9th Cir. 1987). Therefore, the BIA did not abuse its discretion in denying Mendoza-Morales's motion to reopen.



The panel unanimously finds this case suitable for decision without oral argument. Fed. R. App. P. 34(a) and 9th Cir.R. 34-4


This disposition is not appropriate for publication and may not be cited to or by the courts of this circuit except as provided by 9th Cir.R.36-3