Adamian v. Immigration & Naturalization Service

83 F. App'x 231

• Court: Court of Appeals for the Ninth Circuit
• Decided: December 16, 2003
• Docket: No. 02-70725; Agency Nos. A74-431-527, A74-431-528
• Status: Published

Opinion

MEMORANDUM

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The petitioners seek review of the Board of Immigration Appeals’ (“BIA”) denials of their motion for reconsideration and motion to remand and supplement. The petitioners have failed to demonstrate that the BIA abused its discretion in denying their motion for reconsideration. See Cano-Merida v. INS, 311 F.3d 960, 964 (9th Cir.2002). Additionally, the petitioners’ motion to remand and supplement is properly construed as a motion to reopen, and, as such, it was not timely filed. See Vare-la v. INS, 204 F.3d 1237, 1239 n. 4 (9th Cir.2000) (“A motion to reopen is the correct motion to file when seeking to present new facts not already in evidence.”); 8 C.F.R. § 1003.2(c)(2) (a motion to reopen “must be filed no later than 90 days after the date on which the final administrative decision was rendered in the proceeding sought to be reopened”). Moreover, the petitioners have not demonstrated that they have met the unavailability or materiality requirements for a motion to reopen. 8 C.F.R. § 1003.2(c)(1) (“A motion to reopen proceedings shall not be granted unless it appears to the Board that evidence sought to be offered is material and was not available and could not have been discovered or presented at the former hearing. ...”). For the foregoing reasons, the petition for review is denied.

DENIED.

This disposition is not appropriate for publication and may not be cited to or by the courts of this circuit except as provided by Ninth Circuit Rule 36-3.