Victoria Mishustina 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.
** The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
VICTORIA MISHUSTINA,
Petitioner,
v.
ERIC H. HOLDER, Jr., Attorney General,
Respondent.
No. 05-70513
Agency No. A077-427-431
MEMORANDUM*
On Petition for Review of an Order of the
Board of Immigration Appeals
Submitted August 16, 2010 **
Pasadena, California
Before: PREGERSON, NOONAN and PAEZ, Circuit Judges.
Victoria Mishustina petitions for review of a final decision of the Board of
Immigration Appeals denying her motion to reopen a proceeding in which she was
denied asylum and withholding of removal under the Immigration and Nationality
FILED
AUG 18 2010
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS

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Act, 8 U.S.C. §§ 1158, 1231(b)(3), and denying her motion for reinstatement of
voluntary departure, pursuant to 8 U.S.C. § 1229c.
A motion to reopen must ordinarily be filed within ninety days after the
final decision of the BIA. 8 C.F.R. § 1003.2(c)(2). Mishustina’s was not.
Mishustina seeks to avail herself of the exception to the timing requirement for
cases in which there are “changed circumstances arising in the country of
nationality or in the country to which deportation has been ordered, if such
evidence is material and was not available and could not have been discovered or
presented at the previous hearing.” Id. § 1003.2(c)(3)(ii). But to show changed
circumstances, Mishustina points only to Russian laws that had already been
enacted at the time of her hearing. These laws could have been discovered or
presented at Mishustina’s original hearing. Her motion to reopen was untimely.
The BIA reviewed Mishustina’s motion to reopen under its established
standard for untimely motions to reopen. In re Beckford, 22 I. & N. Dec. 1216
(BIA 2000). The BIA did not abuse its discretion by failing to reopen based upon
the limited evidence that Mishustina presented. See He v. Gonzales, 501 F.3d
1128, 1133 (9th Cir. 2007).
Mishustina’s petition for review also suggests that the BIA abused its
discretion in refusing to reinstate her voluntary departure. We lack jurisdiction to

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review the BIA’s decision to grant or deny a request for voluntary departure.
Garcia v. Ashcroft, 368 F.3d 1157, 1159 (9th Cir. 2004) (order).
The petition for review is DENIED.

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