Lusvin Alfonso Lopez-Pelaez v. ERIC H. HOLDER, Jr., Attorney General

NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
LUSVIN ALFONSO LOPEZ-PELAEZ,
Petitioner,
v.
ERIC H. HOLDER, Jr., Attorney General,
Respondent.
No. 13-71346
Agency No. A070-501-075
MEMORANDUM*
On Petition for Review of an Order of the
Board of Immigration Appeals
January 21, 2015**
Before: CANBY, GOULD, and N.R. SMITH, Circuit Judges.
Lusvin Alfonso Lopez-Pelaez, a native and citizen of Guatemala, petitions
for review of the Board of Immigration Appeals’ (“BIA”) order denying his
motion to reopen. Our jurisdiction is governed by 8 U.S.C. § 1252. We review for
abuse of discretion the denial of a motion to reopen. Toufighi v. Mukasey, 538
FILED
JAN 29 2015
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
* 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).

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F.3d 988, 992 (9th Cir. 2008). We deny in part and dismiss in part the petition for
review.
The BIA did not abuse its discretion in denying Lopez-Pelaez’s untimely
motion to reopen, where he failed to present sufficient evidence of changed
country conditions in Guatemala to qualify for the regulatory exception to the time
limit for filing motions to reopen, and he did not submit applications for relief. See
8 C.F.R. § 1003.2(c)(1), (c)(3)(ii); Toufighi, 538 F.3d at 996 (to prevail on a
motion to reopen based on changed country conditions, applicant must inter alia
demonstrate that his evidence establishes prima facie eligibility for relief).
To the extent that Lopez-Pelaez contends that the BIA abused its discretion
by not sua sponte reopening his proceedings, we lack jurisdiction to review this
contention. See Toufighi, 538 F.3d at 993 n. 8.
This dismissal is without prejudice to petitioner’s seeking prosecutorial
discretion or deferred action from the Department of Homeland Security. See
Reno v. American-Arab Anti-Discrimination Committee (AADC), 525 U.S. 471,
483-85 (1999) (stating that prosecutorial discretion by the agency can be granted at
any stage, including after the conclusion of judicial review).
PETITION FOR REVIEW DENIED in part; DISMISSED in part.
13-71346 2

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