                              NOT FOR PUBLICATION                        FILED
                    UNITED STATES COURT OF APPEALS                       DEC 20 2017
                                                                      MOLLY C. DWYER, CLERK
                                                                       U.S. COURT OF APPEALS
                              FOR THE NINTH CIRCUIT

ARMANDO SEVERINO-ZUNIGA,                        No.    17-71335

                Petitioner,                     Agency No. A079-611-901

 v.
                                                MEMORANDUM*
JEFFERSON B. SESSIONS III, Attorney
General,

                Respondent.

                     On Petition for Review of an Order of the
                         Board of Immigration Appeals

                          Submitted December 18, 2017**

Before:      WALLACE, SILVERMAN, and BYBEE, Circuit Judges.

      Armando Severino-Zuniga, a native and citizen of Argentina, petitions for

review of the Board of Immigration Appeals’ (“BIA”) order dismissing his appeal

from an immigration judge’s (“IJ”) decision granting his request to withdraw his

application for admission, and the BIA’s order regarding his motions to reopen


      *
             This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
      **
             The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
removal proceedings. Our jurisdiction is governed by 8 U.S.C. § 1252. We review

de novo legal determinations, and for substantial evidence factual findings.

Wakkary v. Holder, 558 F.3d 1049, 1056 (9th Cir. 2009). We review for abuse of

discretion the denial of a motion to remand and a motion to reopen. Konstantinova

v. INS, 195 F.3d 528, 529 (9th Cir. 1999). We dismiss in part and deny in part the

petition for review.

      We do not consider the materials Severino-Zuniga submitted with his

opening brief that are not part of the administrative record. See Fisher v. INS, 79

F.3d 955, 963-64 (9th Cir.1996) (en banc).

      The BIA properly dismissed as untimely Severino-Zuniga’s appeal from the

IJ’s grant of his request to withdraw his application for admission where he filed it

over three months after the IJ’s decision and did not provide any explanation for

the late filing. See 8 C.F.R. § 1003.38(b)-(c). Thus, we lack jurisdiction to review

Severino-Zuniga’s due process contentions. See Barron v. Ashcroft, 358 F.3d 674,

678 (9th Cir. 2004).

      The BIA did not abuse its discretion by affirming the IJ’s denial of Severino-

Zuniga’s motion to reopen. See Mohammed, 400 F.3d at 791-92 (standard of

review); Lata v. INS, 204 F.3d 1241, 1246 (9th Cir. 2000) (requiring error to

                                          2                                     17-71335
prevail on a due process claim)

      Finally, the BIA did not abuse its discretion by declining to remand

Severino-Zuniga’s case where he failed to offer evidence that was unavailable and

incapable of being discovered or presented at the former hearing. See 8 C.F.R. §

1003.2(c)(1); Goel v. Gonzales, 490 F.3d 735, 739 (9th Cir. 2007) (BIA did not

abuse its discretion where evidence proffered was not previously unavailable).

      PETITION FOR REVIEW DISMISSED in part; DENIED in part.




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