Veronica Rosibelle Mendez Sibrian v. WILLIAM P. BARR, Attorney General

NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
VERONICA ROSIBELLE MENDEZ
SIBRIAN,
Petitioner,
v.
WILLIAM P. BARR, Attorney General,
Respondent.
No. 18-71474
Agency No. A206-269-317
MEMORANDUM*
On Petition for Review of an Order of the
Board of Immigration Appeals
Submitted May 21, 2019**
Before: THOMAS, Chief Judge, FRIEDLAND and BENNETT, Circuit Judges.
Veronica Rosibelle Mendez Sibrian, a native and citizen of El Salvador,
petitions pro se for review of the Board of Immigration Appeals’ (“BIA”) order
dismissing her appeal from an immigration judge’s (“IJ”) decision denying her
motion to reconsider and to reopen removal proceedings. Our jurisdiction is
* 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).
FILED
MAY 23 2019
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS

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2 18-71474
governed by 8 U.S.C. § 1252. We review for abuse of discretion the denial of a
motion to reconsider or reopen. Mohammed v. Gonzales, 400 F.3d 785, 791 (9th
Cir. 2005). We deny in part and dismiss in part the petition for review.
The agency did not abuse its discretion in denying the motion to reconsider
as untimely and because it failed to specify any error in law or fact in the prior
removal order. See 8 U.S.C. § 1229a(c)(6)(A), (B); 8 C.F.R. § 1003.2(b)(1), (2).
To the extent the agency construed Mendez Sibrian’s motion to reconsider as a
motion to reopen, the agency did not abuse its discretion in denying it as untimely
and for failure to present previously unavailable and material evidence. See
Mohammed, 400 F.3d at 793 (agency may construe motions based on their
underlying purpose); Najmabadi v. Holder, 597 F.3d 983, 986 (9th Cir. 2010)
(motion to reopen must generally be filed within ninety days; “[t]he BIA can deny
a motion to reopen [for] . . . failure to introduce previously unavailable, material
evidence.” (citation omitted)). The BIA acted within its broad discretion in
determining that Mendez Sibrian’s evidence was insufficient to warrant reopening
given the IJ’s underlying adverse credibility determination. Toufighi v. Mukasey,
538 F.3d 988, 996-97 (9th Cir. 2007) (evidence immaterial in light of prior adverse
credibility determination).

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3 18-71474
To the extent Mendez Sibrian challenges the IJ’s February 13, 2017 order
and the denial of her asylum and withholding of removal claims, we lack
jurisdiction to consider those contentions because the petition for review is not
timely as to that order. See 8 U.S.C. § 1252(b)(1) (“The petition for review must
be filed not later than 30 days after the date of the final order of removal.”).
PETITION FOR REVIEW DENIED in part; DISMISSED in part.

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