Perez De Gabriel v. Holder , 362 F. App'x 755 ( 2010 )

FILED
NOT FOR PUBLICATION JAN 20 2010
MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U .S. C O U R T OF APPE ALS
FOR THE NINTH CIRCUIT
BERNARDINO GABRIEL-PEREZ; No. 07-71494
VENANCIA PEREZ DE GABRIEL;
EDUARDO GABRIEL-PEREZ, Agency Nos. A076-356-260
A076-356-337
Petitioners, A072-402-852
v.
MEMORANDUM *
ERIC H. HOLDER Jr., Attorney General,
Respondent.
On Petition for Review of an Order of the
Board of Immigration Appeals
Submitted January 11, 2010 **
Before: BEEZER, TROTT, and BYBEE, Circuit Judges.
Bernardino Gabriel-Perez, his wife, Venancia Perez de Gabriel, and adult
son, Eduardo Gabriel-Perez, natives and citizens of Mexico, petition for review of
*
This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
**
The panel unanimously finds this case suitable for decision without
oral argument. See Fed. R. App. P. 34(a)(2).
KAD/Research
the Board of Immigration Appeals’ (“BIA”) order denying their motion to reopen
removal proceedings. We have jurisdiction pursuant to 8 U.S.C. § 1252. We
review the denial of a motion to reopen for abuse of discretion, Ordonez v. INS,
345 F.3d 777, 782 (9th Cir. 2003), and we review due process claims de novo, Ram
v. INS, 243 F.3d 510, 516 (9th Cir. 2001). We deny the petition for review.
The BIA did not abuse its discretion in denying petitioners’ motion to
reopen because the motion was untimely, see 8 C.F.R. § 1003.2(c); Alali-Amin v.
Mukasey, 523 F.3d 1039, 1041-42 (9th Cir. 2008), petitioners failed to establish
changed circumstances in Mexico that would warrant reopening, see 8
C.F.R.§ 1003.2(c)(3)(ii); Azanor v. Ashcroft, 364 F.3d 1013, 1021-22 (9th Cir.
2004), and petitioners failed to establish prima facie eligibility for relief, see
Ordonez, 345 F.3d at 785. It follows that the denial of petitioners’ motion to
reopen did not violate due process. See Lata v. INS, 204 F.3d 1241, 1246 (9th Cir.
2000) (requiring error to prevail on a due process claim).
Petitioners also contend that the BIA erred by failing to consider Eduardo
Gabriel-Perez’ request to submit a separate asylum application. This contention is
without merit because petitioners did not overcome the presumption that the BIA
fully reviewed the record. See Fernandez v. Gonzales, 439 F.3d 592, 603 (9th Cir.
2006).
KAD/Research 2 07-71494
Finally, there is no merit to petitioners’ contention that the BIA erred by
employing an incorrect legal standard.
PETITION FOR REVIEW DENIED.
KAD/Research 3 07-71494