Hernandez-Espinoza v. Ashcroft

115 F. App'x 334

Opinion

MEMORANDUM

**

Fernando Hemandez-Espinoza, a native and citizen of Mexico, petitions for review of the Board of Immigration Appeals’ (“BIA”) decision denying his motion to reconsider. We review for abuse of discretion the BIA’s denial of a motion to reconsider, and we review de novo claims of due process violations. Cano-Merida v. INS, 311 F.3d 960, 964 (9th Cir.2002).

The BIA did not abuse its discretion in denying Hernandez-Espinoza’s motion to reconsider. As the BIA noted, Hernandez-Espinoza’s motion to reconsider did not comply with the regulations governing motions to reconsider because it failed to identify any errors of law or fact in the BIA’s decision. See 8 C.F.R. § 1003.2(b)(1); see also Iturribarria v. INS, 321 F.3d 889, 895 (9th Cir.2003) (stating “a motion to reconsider challenges determinations of law and fact made by the BIA.”). Indeed, Hernandez-Espinoza’s motion did not advance any legal or factual arguments, nor did it indicate how the BIA’s decision would have been different if Hemandez-Espinoza had filed a brief with the BIA in the earlier proceedings. Accordingly, the BIA acted within its discretion in denying the motion to reconsider. See Cano-Merida, 311 F.3d at 966.

Hernandez-Espinoza’s due process claim fails because he has not established any prejudice. Cf. Singh v. Ashcroft, 362 F.3d 1164, 1168-69 (9th Cir.2004) (finding due process violation when BIA sent briefing schedule and transcript to wrong address and denied petitioner’s motion to file a late brief to explain allegedly inconsistent testimony). Hernandez-Espinoza’s contention that the BIA denied his right to counsel is deemed abandoned because this contention was not supported by any argument in petitioner’s opening brief. See Martinez-Serrano v. INS, 94 F.3d 1256, 1259 (9th Cir.1996).

PETITION FOR REVIEW 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.