Rivas v. Immigration & Naturalization Service

22 F. App'x 935

• Court: Court of Appeals for the Ninth Circuit
• Decided: January 2, 2002
• Docket: No. 01-70193; INS No. A72-530-803
• Status: Published

Opinion

MEMORANDUM

**

Geovany Rivas, a native and citizen of Guatemala, petitions for review of an order of the Board of Immigration Appeals (“BIA”) dismissing his appeal from an immigration judge’s denial of his motion to reopen deportation proceedings. We have jurisdiction pursuant to 8 U.S.C. § llOSa(a),¹ and we deny the petition.

We review for abuse of discretion the BIA’s determination that Rivas did not present new and material evidence justifying reopening the deportation proceedings. See INS v. Abudu, 485 U.S. 94, 104-05, 108 S.Ct. 904, 99 L.Ed.2d 90 (1988). We deny Rivas’s petition for review because the new evidence he presented (the June 15, 2000 declaration from Rivas’s uncle) establishes only that Rivas’s father was murdered without discussing why or by whom. The new evidence, therefore, is not material to whether Rivas has a well-founded fear of persecution, and the BIA did not abuse its discretion by dismissing Rivas’s appeal. See 8 C.F.R. § 3.23(b)(3); see also Elias-Zacarias v. INS, 921 F.2d 844, 854 n. 13 (9th Cir.1990) (holding that evidence is material if it “tend[s] to strengthen the alien’s claim for relief ....”), rev’d on other grounds by 502 U.S. 478, 112 S.Ct. 812, 117 L.Ed.2d 38 (1992).

Rivas’s remaining contentions lack merit.

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 may be provided by 9 th Cir. R. 36-3.

1 . The Illegal Immigration Reform and Immigrant Responsibility Act of 1996 ("IIRIRA”), Pub. L. No. 104-208, 110 Stat. 3009 (Sept. 30, 1996), replaced this section with a new judicial review provision codified at 8 U.S.C. § 1252. Under IIRIRA’s transitional rules, however, this new provision does not apply to proceedings initiated prior to April 1, 1997 that result in a final deportation order entered after October 30, 1996. We therefore continue to exercise jurisdiction over Rivas's action under 8 U.S.C. § 1105a(a). IIRIRA § 309(c)(1); Kalaw v. INS, 133 F.3d 1147, 1150-51 (9th Cir.1997).