U.S. Court of Appeals for the Ninth Circuit, 2004

Garayar-Gallegos v. Ashcroft

U.S. Court of Appeals for the Ninth Circuit · Decided June 15, 2004 · Rymer, Thomas, Trott

101 F. App'x 238

Counsel

Gabriela-Kreutzer, Esq., Olympic Law Center, Los Angeles, CA, pro se., Regional Counsel, Western Region, Immigration & Naturalization Service, Laguna Niguel, CA, CAC-District Counsel, Esq., Office of the District Counsel, Los. Angeles, CA, Ronald E. LeFevre, Chief Legal Officer, Office of the District Counsel, San Francisco, CA, Michele Y.F. Sarko, Attorney, Margaret Perry, Esq., AnhThu P. Mai, U.S. Department of Justice, Washington, DC, for Respondent.

Opinion of the Court

MEMORANDUM ***

The district court did not abuse its discretion in applying both INA § 242B (c)(3) and 8 C.F.R. § 3.23(b)(3). The “new facts” requirement in § 3.23(b)(3) applies to all motions to reopen, whereas the “exceptional circumstances” requirement in § 242B(c)(3) specifically applies to orders entered in absentia. The IJ properly and comprehensively applied both the general and the specific standards.

Garayar-Gallegos’s argument that the BIA erred in affirming the IJ decision without opinion is foreclosed by Falcon Carriche v. Ashcroft, 335 F.3d 1009, 1013 (9th Cir. 2003).

The petition for review is 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.

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