                              NOT FOR PUBLICATION

                       UNITED STATES COURT OF APPEALS                         FILED
                              FOR THE NINTH CIRCUIT                            JAN 24 2011

                                                                         MOLLY C. DWYER, CLERK
 JOSE GUADALUPE TALAMANTES-                           No. 06-75768          U.S. COURT OF APPEALS

 AGUAYO,
                                                      BIA-1: A092-631-574
               Petitioner,

  v.

 ERIC H. HOLDER, Jr., Attorney General,

               Respondent.



 JOSE GUADALUPE TALAMANTES-                           No. 09-72333
 AGUAYO,
                                                      BIA-1: A092-631-574
               Petitioner,
                                                      MEMORANDUM*
  v.

 ERIC H. HOLDER, Jr., Attorney General,

               Respondent.



           Petitions to Review Orders of the Board of Immigration Appeals




       *
         This disposition is not appropriate for publication and is not precedent except
as provided by 9th Cir. R. 36-3.
                         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



        **
             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.

                                         2
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




                                            3
      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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