619 Petitioner, MEMORANDUM v. ERIC H. HOLDER, Jr., Attorney ) General v. ERIC H. HOLDER, Jr., Attorney ) General

* This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
CANDIDA CECILIA ) No. 11-73998
SANCHEZ-DE CABEZA, )
) Agency No. A094-789-619
Petitioner, )
) MEMORANDUM *
v. )
)
ERIC H. HOLDER, Jr., Attorney )
General, )
)
Respondent. )
)
CANDIDA CECILIA ) No. 12-72805
SANCHEZ-DE CABEZA, )
) Agency No. A094-789-619
Petitioner, )
)
v. )
)
ERIC H. HOLDER, Jr., Attorney )
General, )
)
Respondent. )
)
On Petition for Review of an Order of the
Board of Immigration Appeals
FILED
APR 24 2013
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS

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1 No. 11-73998.
2 No. 12-72805.
2
Argued and Submitted April 9, 2013
Pasadena, California
Before: FERNANDEZ, RAWLINSON, and BYBEE, Circuit Judges.
Candida Cecilia Sanchez-De Cabeza (“Sanchez”) petitions for review of the
Board of Immigration Appeals’ (BIA) December 13, 2011, denial of her motion to
reopen,1 and of its November 17, 2008, rejection of her notice of appeal to it. 2 We
dismiss her petition in the latter for lack of jurisdiction, and deny her petition in the
former on the merits.
(1) We do not have jurisdiction over the BIA’s notice of rejection of her
first filing with it. That notice of appeal to the BIA was incomplete, and the BIA
told Sanchez what was needed to effectively remedy the problem. The document
in question was not a final order of removal. But our jurisdiction is limited to final
orders of removal. See 8 U.S.C. § 1252(a)(1); Shaboyan v. Holder, 652 F.3d 988,
989–90 (9th Cir. 2011) (per curiam); Lolong v. Gonzales, 484 F.3d 1173, 1176
(9th Cir. 2007) (en banc). Indeed, it was not until May 11, 2009, that the BIA
actually dismissed her appeal for lack of jurisdiction; she then petitioned for
review of that action and we denied her petition on the basis that the BIA had

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3 See 8 U.S.C. § 1229a(c)(7); 8 C.F.R. § 1003.2(a).
4 See 8 C.F.R. § 1003.23(b).
3
“properly dismissed the appeal as untimely.” Therefore, we dismiss Appeal
Number 12-72805 for lack of jurisdiction.
(2) The BIA did not err when it denied her October 24, 2011, motion to
reopen based upon the so-called place-of-filing rule on December 13, 2011. See In
re Lopez, 22 I. & N. Dec. 16, 16–17 (BIA 1998); In re Mladineo, 14 I. & N. Dec.
591, 592 (BIA 1974). Under that rule, where the decision that an alien seeks to
reopen 3 (here the decision of May 11, 2009) was a decision where the BIA
dismissed an appeal due to untimeliness, a later motion to reopen will be
considered only if it seeks to attack the prior decision itself. A motion to reopen 4
on other grounds must be presented to the Immigration Judge (IJ) who never lost
and continues to have jurisdiction over the case. In other words, the right to file a
motion to reopen is not denied; it simply must be filed in the correct forum. That,
surely, is a permissible construction of the regulations, and is entitled to deference.
See INS v. Ventura, 537 U.S. 12, 16–17, 123 S. Ct. 353, 355–56, 154 L. Ed. 2d
272 (2002); Christensen v. Harris Cnty., 529 U.S. 576, 587–88, 120 S. Ct. 1655,
1663, 146 L. Ed. 2d 621 (2000); Auer v. Robbins, 519 U.S. 452, 461, 117 S. Ct.
905, 911, 137 L. Ed. 2d 79 (1997); Chevron, U.S.A., Inc. v. Natural Res. Def.

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5 We do acknowledge that the use of the word “jurisdiction” was infelicitous
in light of our, and the Supreme Court’s, admonition that the word has often been
used improperly and should not be used where the provision being considered is
really a claims processing — rather than a true jurisdictional — rule. See Irigoyen-
Briones v. Holder, 644 F.3d 943, 947–49 (9th Cir. 2011); see also Arbaugh v.
Y & H Corp., 546 U.S. 500, 510, 514–16, 126 S. Ct. 1235, 1242, 1245, 163 L. Ed.
2d 1097 (2006); Kontrick v. Ryan, 540 U.S. 443, 452–56, 124 S. Ct. 906, 914–16,
157 L. Ed. 2d 867 (2004). However, that does not affect the basic fact that the
proper place to have filed was with the IJ.
4
Council, Inc., 467 U.S. 837, 842–44, 104 S. Ct. 2778, 2781–82, 81 L. Ed. 2d 694
(1984). The BIA properly determined that Sanchez’s motion to reopen did not,
actually, seek to reopen its own prior decision. In so deciding, the BIA did not err
in any meaningful sense. 5 Of course, as the BIA explained in its decision of May
11, 2009, and again when it denied her motion to reopen, she should file her
motion with the IJ.
Petition in Number 11-73998 DENIED; petition in Number 12-72805
DISMISSED.

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