Calleros-Alcala v. Ashcroft

118 F. App'x 213

• Court: Court of Appeals for the Ninth Circuit
• Decided: December 10, 2004
• Docket: No. 03-72439
• Status: Published

Opinion

MEMORANDUM

**

Ricardo Calleros-AIeala, a native and citizen of Mexico, petitions for review of the Board of Immigration Appeals’ (“Board”) orders denying his motion to reopen to adjust status, his motion to reconsider the denial of that motion, and .a supplemental motion to reopen or reconsider. To the extent we have jurisdiction, it is conferred by 8 U.S.C. § 1252. We review for abuse of discretion. Singh v. Ashcroft, 367 F.3d 1182, 1185 (9th Cir.2004). We dismiss in part and deny in part the petition for review.

We lack jurisdiction to consider the Board’s denial of petitioner’s original motion to reopen because petitioner failed to file a timely petition for review of that decision. See Martinez-Serrano v. INS, 94 F.3d 1256, 1258 (9th Cir.1996).

The Board did not abuse its discretion in denying petitioner’s motion to reconsider the denial of his original motion to reopen because petitioner failed to demonstrate that a visa was immediately available to him at the time he filed his motion to reopen. See 8 U.S.C. § 1255(i)(2)(B) (stating that the Attorney General may adjust an alien’s status if an immigrant visa is immediately available when the alien files the adjustment application); 8 C.F.R. § 1003.2(b)(1) (articulating the standard for motions to reconsider).

The Board also did not abuse its discretion in construing petitioner’s supplemental motion to reopen or reconsider as a second motion to reopen and denying that motion as numerically barred. See 8 U.S.C. § 1229a(c)(6)(a) (permitting only one motion to reopen or reconsider).

We have considered petitioner’s remaining contentions, and conclude that they lack merit.

PETITION FOR REVIEW DISMISSED in part and DENIED in part.

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.