                                                                           FILED
                             NOT FOR PUBLICATION                            JAN 27 2015

                                                                        MOLLY C. DWYER, CLERK
                     UNITED STATES COURT OF APPEALS                      U.S. COURT OF APPEALS



                             FOR THE NINTH CIRCUIT


OLIVER SCHAPER, AKA Oliver Dr.                   No. 12-74113
Schaper,
                                                 Agency No. A098-957-911
               Petitioner,

  v.                                             MEMORANDUM*

ERIC H. HOLDER, Jr., Attorney General,

               Respondent.


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

                             Submitted January 21, 2015**

Before:        CANBY, GOULD, and N.R. SMITH, Circuit Judges.

       Oliver Schaper, a native and citizen of Germany, petitions pro se for review

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

immigration judge’s (“IJ”) decision denying his motion to reopen removal

proceedings. Our jurisdiction is governed by 8 U.S.C. § 1252. We review for

          *
             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).
abuse of discretion the denial of a motion to reopen, Avagyan v. Holder, 646 F.3d

672, 674 (9th Cir. 2011), and we dismiss in part and deny in part the petition for

review.

       We lack jurisdiction to review Schaper’s challenges to the IJ’s June 4, 2010,

order denying his application for asylum, withholding of removal, and protection

under the Convention Against Torture because Schaper did not file a petition for

review of that order. See Stone v. INS, 514 U.S. 386, 405-06 (1995); Martinez-

Serrano v. INS, 94 F.3d 1256, 1258 (9th Cir. 1996).

      The BIA did not abuse its discretion in dismissing Schaper’s appeal from an

IJ’s denial of his motion to reopen because he failed to establish that it was based

on evidence that was not available and could not have been discovered or

presented at the former hearings. See 8 C.F.R. § 1003.23(b)(3); INS v. Abudu, 485

U.S. 94, 104-05 (1988) (agency may deny a motion to reopen for failure to

introduce previously unavailable evidence). We reject Schaper’s contention that

the IJ and/or BIA failed to evaluate his evidence.

      Finally, we deny Schaper’s request for remand based on his marriage to a

U.S. citizen. See 8 C.F.R. § 1003.2(c)(1).

      This dismissal is without prejudice to petitioner’s seeking prosecutorial

discretion or deferred action from the Department of Homeland Security. See

                                          2                                    12-74113
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 DISMISSED in part; DENIED in part.




                                          3                                   12-74113
