Martin Salmalanca-Padilla v. Jefferson Sessions

Opinion

NOT FOR PUBLICATION FILED UNITED STATES COURT OF APPEALS MAR 19 2018 MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS FOR THE NINTH CIRCUIT

MARTIN SALMALANCA-PADILLA, No. 14-73453 AKA Martin Salamanca-Padilla, Agency No. A073-130-374 Petitioner,

v. MEMORANDUM*

JEFFERSON B. SESSIONS III, Attorney General,

Respondent.

On Petition for Review of an Order of the Board of Immigration Appeals

Submitted March 13, 2018**

Before: LEAVY, M. SMITH, and CHRISTEN, Circuit Judges.

Martin Salamanca-Padilla, a native and citizen of Mexico, petitions for

review of the Board of Immigration Appeals’ (“BIA”) order denying his motion to

reopen removal proceedings. We have jurisdiction under 8 U.S.C. § 1252. We

* This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3. ** The panel unanimously concludes this case is suitable for decision without oral argument. See Fed. R. App. P. 34(a)(2). review for abuse of discretion the denial of a motion to reopen and review de novo

questions of law. Bonilla v. Lynch, 840 F.3d 575, 581 (9th Cir. 2016). We deny the

petition for review.

The BIA did not abuse its discretion in denying Salamanca-Padilla’s motion

to reopen so that he could pursue an I-601A provisional unlawful presence waiver,

where Salamanca-Padilla failed to establish prima facie eligibility for that waiver.

See Lopez-Vasquez v. Holder, 706 F.3d 1072, 1080 (9th Cir. 2013); 8 C.F.R.

§ 212.7(e)(3), (4) (2013).

Salamanca-Padilla’s contention that the BIA failed to recognize that it had

authority to reopen as a matter of discretion is belied by the BIA’s statement that it

declined to exercise its discretion to reopen sua sponte under 8 C.F.R. § 1003.2(a).

Cf. Singh v. Holder, 771 F.3d 647, 653 (9th Cir. 2014) (the BIA’s denial of a

motion to reopen on jurisdictional grounds was legal error, and thus an abuse of

discretion, because the BIA had authority to reopen under 8 C.F.R. § 1003.2(a)).

Salamanca-Padilla’s motion to stay removal (Docket Entry No. 27) is denied

as moot. The temporary stay of removal will expire upon issuance of the mandate.

PETITION FOR REVIEW DENIED.

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