                                                                   FILED
                                                       United States Court of Appeals
                        UNITED STATES COURT OF APPEALS         Tenth Circuit

                              FOR THE TENTH CIRCUIT                        February 15, 2019
                          _________________________________
                                                                          Elisabeth A. Shumaker
                                                                              Clerk of Court
    KAREN VIOLETA FLORES-ARGUETA,
    AKA Karen Violeta Flores,

         Petitioner,
                                                                 No. 18-9556
    v.                                                       (Petition for Review)

    MATTHEW G. WHITAKER, acting
    United States Attorney General,

         Respondent.
                              _________________________________

                              ORDER AND JUDGMENT*
                          _________________________________

Before HARTZ, McHUGH, and CARSON, Circuit Judges.
                  _________________________________

         Karen Violeta Flores-Argueta, a native and citizen of El Salvador, petitions for

review of the denial by the Board of Immigration Appeals (BIA) of her motion to reopen

her removal proceedings. At the proceedings before the immigration judge (IJ), she

admitted removability and the IJ ruled that she was not eligible for relief from removal to

El Salvador. The IJ determined that she was not eligible for cancellation of removal



*
  After examining the briefs and appellate record, this panel has determined unanimously
that oral argument would not materially assist in the determination of this appeal. See
Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1(G). The case is therefore ordered submitted
without oral argument. This order and judgment is not binding precedent, except under
the doctrines of law of the case, res judicata, and collateral estoppel. It may be cited,
however, for its persuasive value consistent with Fed. R. App. P. 32.1 and 10th Cir. R.
32.1.
under 8 U.S.C. § 1229b(b) because she had been convicted of assault with a deadly

weapon in California, which is a crime involving moral turpitude under 8 U.S.C.

§ 1182(a)(2). See Matter of Wu, 27 I. & N. Dec. 8, 9 (B.I.A. 2017). The IJ also

determined that she was not entitled to asylum or withholding of removal because she

had not presented evidence showing that she would face persecution in El Salvador on

the basis of a protected characteristic, and that she was not entitled to protection under the

Convention Against Torture.

       The BIA upheld the IJ’s decision and dismissed Flores-Argueta’s appeal. She did

not petition for review of that decision but did file with the BIA a motion to reopen,

seeking to submit additional evidence. See Alzainati v. Holder, 568 F.3d 844, 847 n.2

(10th Cir. 2009) (“A motion to reopen seeks to present evidence that is material and was

not available and could not have been discovered or presented at the former hearing.”

(internal quotation marks omitted)). The BIA denied the motion, and Flores-Argueta

now petitions this court for review. Denial of a motion to reopen is a “final, separately

appealable order,” which we have jurisdiction to review. See Infanzon v. Ashcroft, 386

F.3d 1359, 1361 (10th Cir. 2004). We deny the petition for review.

       Flores-Argueta’s petition for review raises two arguments: (1) she should have

been allowed to present additional evidence that her daughter had submitted an I-130

form that might allow her to apply for adjustment of status or permanent residency; and

(2) she should have been allowed to present additional evidence that her California

assault conviction had been reclassified as a misdemeanor conviction. Her motion to

reopen had also suggested that she could present evidence regarding her brother’s 2008


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murder in El Salvador, and the BIA’s order discussed that claim; but her brief on appeal

makes no mention of that issue and consequently waives any challenge to the BIA’s

ruling on that ground. See Rodas-Orellana v. Holder, 780 F.3d 982, 998 (10th Cir.

2015).

         We lack jurisdiction to consider Flores-Argueta’s first argument. Her motion to

the BIA to reopen did not raise the contention that her daughter had filed an I-130, and

the BIA’s order did not address it. Under 8 U.S.C. § 1252(d)(1), “our jurisdiction

extends only to issues that have been exhausted before the [BIA].” Molina v. Holder,

763 F.3d 1259, 1262 (10th Cir. 2014). We cannot grant relief from denial of a motion to

reopen on grounds that were not presented in that motion.

         Flores-Argueta’s second argument was rejected by the BIA because she did not

attach to her motion any evidence that her California conviction had been modified. We

review for abuse of discretion a decision on a motion to reopen. See Maatougui v.

Holder, 738 F.3d 1230, 1239 (10th Cir. 2013). “The BIA does not abuse its discretion

when its rationale is clear, there is no departure from established policies, and its

statements are a correct interpretation of the law.” Id. at 1239 (internal quotation marks

omitted). There was no abuse of discretion in this case. Flores-Argueta’s motion was not

supported by any evidence that her California conviction had been reclassified as a

misdemeanor. The BIA followed its established policy of requiring that motions to

reopen “shall state the new facts that will be proven at a hearing to be held if the motion

is granted and shall be supported by affidavits or other evidentiary material.” 8 C.F.R.

§ 1003.2(c)(1). Denying the motion to reopen on that basis was not an abuse of


                                              3
discretion. See Ghosh v. Attorney General, 629 F.2d 987, 989 (4th Cir. 1980) (“It is not

an abuse of discretion to deny a motion to reopen deportation proceedings when the

motion is not supported by proper affidavits or other evidentiary material”); Lipilina v.

INS, 87 F. App’x 101, 102 (10th Cir. 2004) (the BIA did not abuse its discretion in

denying a motion to reopen that was not accompanied by evidentiary support). Flores-

Argueta has attached a document to her petition for review that appears to indicate that

her California conviction was dismissed, but that document was not attached to her

motion to reopen. Therefore the BIA did not abuse its discretion in finding that the

motion was not supported by evidentiary material. In any event, because the document

was never presented to the agency, it is not part of the administrative record and we

cannot consider it. See R-S-C v. Sessions, 869 F.3d 1176, 1182 (10th Cir. 2017) (“The

[Immigration and Nationality Act] restricts our review of [the] petition only to the

administrative record.”); 8 U.S.C. § 1252(b)(4)(A) (“[T]he court of appeals shall decide

the petition only on the administrative record on which the order of removal is based.”).

       We DISMISS the petition for review in part for lack of jurisdiction and DENY the

remainder of the petition.


                                              Entered for the Court


                                              Harris L Hartz
                                              Circuit Judge




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