Lopez-Cartagena v. Holder , 594 F. App'x 405 ( 2015 )

FILED
NOT FOR PUBLICATION FEB 26 2015
MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
ELIAS LOPEZ-CARTAGENA, No. 05-76716
Petitioner, Agency No. A029-565-254
v.
MEMORANDUM*
ERIC H. HOLDER, Jr., Attorney General,
Respondent.
On Petition for Review of an Order of the
Board of Immigration Appeals
February 17, 2015**
Before: O’SCANNLAIN, LEAVY, and FERNANDEZ, Circuit Judges.
Elias Lopez-Cartagena, a native and citizen of El Salvador, petitions for
review of the Board of Immigration Appeals’ order summarily affirming an
immigration judge’s (“IJ”) order denying his motion to reopen deportation
proceedings. We have jurisdiction under 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, and we review de novo due process
claims and questions of law. Hernandez-Vivas v. INS, 23 F.3d 1557, 1560 (9th
Cir. 1994). We deny the petition for review.
The agency applied the correct legal standard and did not abuse its discretion
in denying Lopez-Cartagena’s motion to reopen to rescind his in absentia
deportation order on the ground that he failed to establish reasonable cause for his
absence at his deportation hearing. See 8 U.S.C. § 1252(b) (1989) (petitioner must
establish “reasonable cause” for failure to appear); Matter of Cruz-Garcia, 22 I. &
N. Dec. 1155, 1159 (BIA 1999) (no time or numerical limitations on aliens seeking
to reopen deportation proceedings conducted in absentia for the purpose of
vacating the underlying order of deportation entered pursuant to former 8 U.S.C.
§ 1252(b)).
The record belies Lopez-Cartagena’s contention that the agency erred in
construing his motion as an untimely motion to reopen to apply for relief under the
Nicaraguan Adjustment and Central American Relief Act (“NACARA”). See 8
C.F.R. § 1003.43(e)(1)-(2). Lopez-Cartagena’s purported eligibility for other
forms of relief did not require the agency to reopen his deportation proceedings in
the absence of a timely motion to reopen. See 8 C.F.R. § 1003.23(b)(1) (a motion
to reopen to apply for relief must be filed within 90 days of the date of the final
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administrative order of deportation or on or before September 30, 1996, whichever
is later).
In light of this disposition, we need not reach Lopez-Cartagena’s remaining
contentions.
PETITION FOR REVIEW DENIED.
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