Elizabeth Francisco v. Eric Holder, Jr. , 550 F. App'x 458 ( 2013 )


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  •                                                                            FILED
    NOT FOR PUBLICATION                          DEC 20 2013
    MOLLY C. DWYER, CLERK
    UNITED STATES COURT OF APPEALS                      U.S. COURT OF APPEALS
    FOR THE NINTH CIRCUIT
    ELIZABETH CORONADO                               No. 11-70169
    FRANCISCO,
    Agency No. A072-441-852
    Petitioner,
    v.                                             MEMORANDUM*
    ERIC H. HOLDER, Jr., Attorney General,
    Respondent.
    On Petition for Review of an Order of the
    Board of Immigration Appeals
    Submitted December 17, 2013**
    Before:        GOODWIN, WALLACE, and GRABER, Circuit Judges.
    Elizabeth Coronado Francisco, a native and citizen of the Philippines,
    petitions for review of the Board of Immigration Appeals’ (“BIA”) order denying
    her second motion to reopen removal proceedings. Our jurisdiction is governed by
    
    8 U.S.C. § 1252
    . We review for abuse of discretion the denial of a motion to
    *
    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).
    reopen, and review de novo constitutional claims. Mohammed v. Gonzales, 
    400 F.3d 785
    , 791-92 (9th Cir. 2005). We deny in part and dismiss in part the petition
    for review.
    The BIA did not abuse its discretion in denying Francisco’s motion as
    untimely and number-barred, where the successive motion was filed more than
    thirteen years after her removal order became final, see 
    8 C.F.R. § 1003.2
    (c)(2)
    (motion to reopen must be filed within ninety days of final order of removal), and
    her possible eligibility for a new form of relief is not an exception to the filing
    requirements or time and number limitations, see 
    8 C.F.R. § 1003.2
    (c)(3) (listing
    exceptions); see also Ocampo v. Holder, 
    629 F.3d 923
    , 928 (9th Cir. 2010). It
    follows that Francisco’s due process claim fails. See Lata v. INS, 
    204 F.3d 1241
    ,
    1246 (9th Cir. 2000) (petitioner must show error and prejudice to establish a due
    process violation); Mendez-Alcaraz v. Gonzales, 
    464 F.3d 842
    , 844 (9th Cir. 2006)
    (declining to reach nondispositive challenges to a BIA order).
    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).
    PETITION FOR REVIEW DENIED in part; DISMISSED in part.
    2                                     11-70169