U.S. Court of Appeals for the Ninth Circuit, 2010

Jose Erazo-rivas v. Eric H. Holder Jr.

U.S. Court of Appeals for the Ninth Circuit · Decided April 16, 2010 · Rymer, McKeown, Paez

376 F. App'x 709

Counsel

Jose Angel Erazo-Rivas, Santa Ana, CA, pro se., Julie M. Iversen, Trial, OIL, U.S. Department of Justice, Washington, DC, CAC-District Counsel, Esquire, Office of the District Counsel, Department of Homeland Security, Los Angeles, CA, Ronald E. Lefevre, Office of the District Counsel, Department of Homeland Security, San Francisco, CA, for Respondent.

Opinion

MEMORANDUM **

Jose Angel Erazo-Rivas, a native and citizen of Guatemala, petitions pro se for review of the Board of Immigration Appeals’ (“BIA”) decision denying his motion to reconsider. We have jurisdiction pursuant to 8 U.S.C. § 1252. We review for abuse of discretion the denial of a motion to reconsider, Cano-Merida v. INS, 311 F.3d 960, 964 (9th Cir. 2002), and we deny the petition for review.

The BIA did not abuse its discretion in construing Erazo-Rivas’s motion, filed January 15, 2008, as a motion to reconsider. See Mohammed v. Gonzales, 400 F.3d 785, 793 (9th Cir. 2005) (where a petitioner improperly titles a motion to reopen or reconsider, the BIA should construe the motion based on its underlying purpose). So construed, the BIA did not abuse its discretion in denying Erazo-Rivas’s motion to reconsider as untimely. See 8 C.F.R. § 1003.2(b)(2). Erazo-Rivas’s due process claim therefore fails. See Lata v. INS, 204 F.3d 1241, 1246 (9th Cir. 2000) *710 (requiring error for a due process violation).

PETITION FOR REVIEW DENIED.

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

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