Cortez-Mariaca v. Holder

320 F. App'x 633

• Court: Court of Appeals for the Ninth Circuit
• Decided: March 25, 2009
• Docket: No. 04-71415
• Status: Published

Opinion

MEMORANDUM

**

Lucano Cortez-Mariaca, a native and citizen of Mexico, petitions for review of the Board of Immigration Appeals’ (“BIA”) order denying his motion to reopen. Our jurisdiction is governed by 8 U.S.C. § 1252. We review for abuse of discretion the denial of a motion to reopen. Perez v. Mukasey, 516 F.3d 770, 773 (9th Cir.2008). We deny in part and dismiss in part the petition for review.

The BIA did not abuse its discretion when it denied Cortez-Mariaca’s motion to reopen. See Mendez-Gutierrez v. Ashcroft, 340 F.3d 865, 869-70 (9th Cir.2003) (“[Pjrima facie eligibility for the relief sought is a prerequisite for the granting of a motion to reopen”). We reject petitioner’s contention regarding Matter of Velarde-Pacheco, 23 I. & N. Dec. 253 (BIA 2002) (en banc).

In his motion to reopen, Cortez-Mariaca failed to raise the contention that his visa petition remained pending as a result of prior counsel’s actions. We therefore lack jurisdiction to review this claim. See Ontiveros-Lopez v. INS, 213 F.3d 1121, 1124 (9th Cir.2000).

In light of our disposition, we need not reach Cortez-Mariaca’s remaining contentions.

PETITION FOR REVIEW DENIED in part; DISMISSED in part.

This disposition is not appropriate for publication and is not precedent except as provided by 9th Cir. R. 36-3.