Talamantes-Aguayo, et al v. Holder, No. 06-75768 (9th Cir. 2011)
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NOT FOR PUBLICATION UNITED STATES COURT OF APPEALS FILED FOR THE NINTH CIRCUIT JAN 24 2011 JOSE GUADALUPE TALAMANTESAGUAYO, No. 06-75768 MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS BIA-1: A092-631-574 Petitioner, v. ERIC H. HOLDER, Jr., Attorney General, Respondent. JOSE GUADALUPE TALAMANTESAGUAYO, No. 09-72333 BIA-1: A092-631-574 Petitioner, MEMORANDUM* v. ERIC H. HOLDER, Jr., Attorney General, Respondent. Petitions to Review Orders of the Board of Immigration Appeals * This disposition is not appropriate for publication and is not precedent except as provided by 9th Cir. R. 36-3. Submitted December 10, 2010** San Francisco, California Before: COWEN***, TASHIMA and SILVERMAN, Circuit Judges. In these consolidated petitions for review, José Guadalupe TalamantesAguayo, a native and citizen of Mexico, seeks review of the Board of Immigration Appeals (BIA) orders (1) dismissing his appeal from an Immigration Judge s (IJ) removal order and denying his motion to remand (No. 06-75768); and (2) denying his motion to reopen (No. 09-72333). Our jurisdiction is governed by 8 U.S.C. §§ 1252(a)(1) and (a)(2)(D). We review questions of law de novo and the denial of motions to remand or reopen for abuse of discretion. Mohammed v. Gonzales, 400 F.3d 785, 791-92 (9th Cir. 2005); Malhi v. INS, 336 F.3d 989, 993 (9th Cir. 2003). We dismiss in part and deny in part the petition for review in No. 06-75768, and deny the petition for review in No. 09-72333. A. Petition for Review in No. 06-75768 We lack jurisdiction to review Petitioner s challenge to his charges of removability because he failed to raise this challenge before the BIA and thereby ** The panel unanimously concludes this case is suitable for decision without oral argument. See Fed. R. App. P. 34(a)(2). *** The Honorable Robert E. Cowen, Senior United States Circuit Judge for the Third Circuit, sitting by designation. 2 failed to exhaust his administrative remedies. See Barron v. Ashcroft, 358 F.3d 674, 678 (9th Cir. 2004). In any event, although Petitioner s conviction under California Penal Code § 273.5(a) is not categorically a crime involving moral turpitude, Morales-Garcia v. Holder, 567 F.3d 1058, 1065-66 (9th Cir. 2009), it is a crime of domestic violence rendering him removable under Immigration and Nationality Act (INA) § 237(a)(2)(E)(i), Banuelos-Ayon v. Holder, 611 F.3d 1080, 1085-86 (9th Cir. 2010). The agency did not err in pretermitting Petitioner s concurrent applications for cancellation of removal under INA § 240A(a) and a waiver of inadmissibility under former INA § 212(c) on the ground that an alien who receives § 212(c) relief cannot also receive §240A relief. See Garcia-Jiminez v. Gonzales, 488 F.3d 1082, 1086 (9th Cir. 2007). The BIA did not abuse its discretion in denying Petitioner s motion to remand to apply for adjustment of status under INA § 245(a) because Petitioner failed to demonstrate prima facie eligibility for the requested relief. See Singh v. INS, 295 F.3d 1037, 1039 (9th Cir. 2002) (stating that the BIA s denial of a motion to reopen shall be reversed only if it is arbitrary, irrational or contrary to law ). B. Petition for Review in No. 09-72333 3 The BIA did not abuse its discretion in denying Petitioner s motion to remand because it was untimely. See 8 U.S.C. § 1229a(c)(7)(C)(i) (providing that a motion to reopen must be filed within ninety days of the final order of removal). Furthermore, to the extent that Petitioner challenges the BIA s decision declining to invoke its authority to reopen the proceedings sua sponte, see 8 C.F.R. § 1003.2(a), we lack jurisdiction to review this discretionary decision. See Ekimian v. INS, 303 F.3d 1153, 1159 (9th Cir. 2002). No. 06-75768: PETITION FOR REVIEW DISMISSED IN PART AND DENIED IN PART. No. 09-72333: PETITION FOR REVIEW DENIED. THE MOTION BY COUNSEL FOR PETITIONER TO WITHDRAW IS GRANTED. 4
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