Jose Guadalupe Talamantes- Aguayo 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NOT FOR PUBLICATION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
JOSE GUADALUPE TALAMANTES-
AGUAYO,
Petitioner,
v.
ERIC H. HOLDER, Jr., Attorney General,
Respondent.
No. 06-75768
BIA-1: A092-631-574
JOSE GUADALUPE TALAMANTES-
AGUAYO,
Petitioner,
v.
ERIC H. HOLDER, Jr., Attorney General,
Respondent.
No. 09-72333
BIA-1: A092-631-574
MEMORANDUM*
Petitions to Review Orders of the Board of Immigration Appeals
FILED
JAN 24 2011
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS

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** The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
*** The Honorable Robert E. Cowen, Senior United States Circuit Judge
for the Third Circuit, sitting by designation.
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Submitted December 10, 2010 **
San Francisco, California
Before: COWEN*** , TASHIMA and SILVERMAN, Circuit Judges.
In these consolidated petitions for review, José Guadalupe Talamantes-
Aguayo, a native and citizen of Mexico, seeks review of the Board of Immigration
Appeals’ (BIA) orders (1) dismissing his appeal from an Immigration Judge’s (IJ)
removal order and denying his motion to remand (No. 06-75768); and (2) denying
his motion to reopen (No. 09-72333). Our jurisdiction is governed by 8 U.S.C. §§
1252(a)(1) and (a)(2)(D). We review questions of law de novo and the denial of
motions to remand or reopen for abuse of discretion. Mohammed v. Gonzales, 400
F.3d 785, 791-92 (9th Cir. 2005); Malhi v. INS, 336 F.3d 989, 993 (9th Cir. 2003).
We dismiss in part and deny in part the petition for review in No. 06-75768, and
deny the petition for review in No. 09-72333.
A. Petition for Review in No. 06-75768
We lack jurisdiction to review Petitioner’s challenge to his charges of
removability because he failed to raise this challenge before the BIA and thereby

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failed to exhaust his administrative remedies. See Barron v. Ashcroft, 358 F.3d
674, 678 (9th Cir. 2004). In any event, although Petitioner’s conviction under
California Penal Code § 273.5(a) is not categorically a crime involving moral
turpitude, Morales-Garcia v. Holder, 567 F.3d 1058, 1065-66 (9th Cir. 2009), it is
a crime of domestic violence rendering him removable under Immigration and
Nationality Act (INA) § 237(a)(2)(E)(i), Banuelos-Ayon v. Holder, 611 F.3d 1080,
1085-86 (9th Cir. 2010).
The agency did not err in pretermitting Petitioner’s concurrent applications
for cancellation of removal under INA § 240A(a) and a waiver of inadmissibility
under former INA § 212(c) on the ground that an alien who receives § 212(c) relief
cannot also receive §240A relief. See Garcia-Jiminez v. Gonzales, 488 F.3d 1082,
1086 (9th Cir. 2007).
The BIA did not abuse its discretion in denying Petitioner’s motion to
remand to apply for adjustment of status under INA § 245(a) because Petitioner
failed to demonstrate prima facie eligibility for the requested relief. See Singh v.
INS, 295 F.3d 1037, 1039 (9th Cir. 2002) (stating that the BIA’s denial of a motion
to reopen shall be reversed only if it is “arbitrary, irrational or contrary to law”).
B. Petition for Review in No. 09-72333

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The BIA did not abuse its discretion in denying Petitioner’s motion to
remand because it was untimely. See 8 U.S.C. § 1229a(c)(7)(C)(i) (providing that
a motion to reopen must be filed within ninety days of the final order of removal).
Furthermore, to the extent that Petitioner challenges the BIA’s decision declining
to invoke its authority to reopen the proceedings sua sponte, see 8 C.F.R. §
1003.2(a), we lack jurisdiction to review this discretionary decision. See Ekimian
v. INS, 303 F.3d 1153, 1159 (9th Cir. 2002).
No. 06-75768: PETITION FOR REVIEW DISMISSED IN PART AND
DENIED IN PART.
No. 09-72333: PETITION FOR REVIEW DENIED.
THE MOTION BY COUNSEL FOR PETITIONER TO WITHDRAW
IS GRANTED.

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