Eugenio Contreras-Pelayo, et al v. Eric H. Holder Jr., No. 08-73100 (9th Cir. 2011)

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FILED JAN 18 2011 NOT FOR PUBLICATION UNITED STATES COURT OF APPEALS MOLLY C. DWYER, CLERK U .S. C O U R T OF APPE ALS FOR THE NINTH CIRCUIT EUGENIO CONTRERAS-PELAYO, Petitioner, No. 08-73100 Agency No. A097-349-901 v. MEMORANDUM * ERIC H. HOLDER, Jr., Attorney General, Respondent. On Petition for Review of an Order of the Board of Immigration Appeals Submitted January 10, 2011 ** Before: BEEZER, TALLMAN, and CALLAHAN, Circuit Judges. Eugenio Contreras-Pelayo, a native and citizen of Mexico, petitions for review of the Board of Immigration Appeals ( BIA ) order denying his motion to reopen proceedings. Our jurisdiction is governed by 8 U.S.C. § 1252. We review for abuse of discretion the denial of a motion to reopen. See Cano-Merida v. INS, * 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). 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 Contreras-Pelayo s motion to reopen because he failed to demonstrate the evidence he submitted was previously unavailable. See 8 C.F.R. § 1003.2(a), (c); Bhasin v. Gonzales, 423 F.3d 977, 984 (9th Cir. 2005). The court lacks jurisdiction to review Contreras-Pelayo s ineffective assistance of counsel contention because he did not exhaust that claim before the BIA. See Puga v. Chertoff, 488 F.3d 812, 815-16 (9th Cir. 2007). We lack jurisdiction to review the BIA s underlying April 15, 2008, order dismissing Contreras-Pelayo s direct appeal because this petition for review is not timely as to that order. See Singh v. INS, 315 F.3d 1186, 1188 (9th Cir. 2003). PETITION FOR REVIEW DENIED in part; DISMISSED in part. 2 08-73100

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