                                                                           FILED
                            NOT FOR PUBLICATION                            AUG 06 2013

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



                            FOR THE NINTH CIRCUIT


AGNES ELIESJEAN ZAINI,                           No. 07-72310

              Petitioner,                        Agency No. A071-808-749

  v.
                                                 MEMORANDUM*
ERIC H. HOLDER, Jr., Attorney General,

              Respondent.



AGNES ELIESJEAN ZAINI,                           No. 09-72337

              Petitioner,                        Agency No. A071-808-749

  v.

ERIC H. HOLDER, Jr., Attorney General,

              Respondent.


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

                     Argued and Submitted December 3, 2012
                     Submission Vacated December 18, 2012
                           Submitted August 6, 2013

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

Before: PREGERSON, PAEZ, and HURWITZ, Circuit Judges.

      Petitioner, Agnes Eliesjean Zaini, petitions for review of the Board of

Immigration Appeals (BIA)’s orders denying her motion to reopen, motion to

reconsider, and motion to reopen sua sponte. We deny the petition in part and

dismiss in part.

      Zaini is an ethnically Chinese citizen of Indonesia and a practicing Christian.

In 1999, she applied for asylum, withholding of removal, and protection under the

Convention Against Torture. Her applications were denied, and she was granted

voluntary departure. Zaini v. Ashcroft, 113 F. App’x 785, 786-87 (9th Cir. 2004).

In December 2006, Zaini filed an Emergency Motion to Reopen and Remand &

Motion for Stay before the BIA. She claimed that she was eligible for asylum and

withholding of removal on the basis of changed country conditions in Indonesia, as

well as for adjustment of status as a beneficiary of her U.S. citizen son. The BIA

denied the motion in May 2007. Zaini then filed a Motion to Reconsider or in the

Alternative Motion to Reopen Sua Sponte in January 2008, again arguing that she

qualified for adjustment of status through her son. The BIA denied those

alternative motions in June 2009. Zaini timely petitioned for review of the BIA’s

orders, which we consolidated for review.
      1. The BIA did not abuse its discretion in denying Zaini’s motion to reopen

to apply for asylum and withholding of removal. Because Zaini did not file her

motion to reopen within 90 days of the final order of removal, she had to submit

evidence of changed country conditions that was “material and was not available

and would not have been discovered or presented at the previous proceeding.” 8

U.S.C. § 1229a(c)(7)(C)(ii). The BIA’s conclusion that Zaini failed to make such a

showing was supported by substantial evidence in the record. See Najmabadi v.

Holder, 597 F.3d 983, 989-90 (9th Cir. 2010).1

      2. The BIA also did not abuse it discretion in denying Zaini’s motion to

reopen to seek adjustment of status. Where there is “no dispute that [the] motion to

reopen was filed after the period for voluntary departure [has] elapsed,” the BIA is

“not simply correct to deny the motion [to reopen],” but actually “compelled to do

so” under 8 U.S.C. § 1229c(d)(1)(B). Granados-Oseguera v. Mukasey, 546 F.3d

1011, 1015 (9th Cir. 2008) (per curiam). This is true even if, as Zaini argues, her

appeal of the IJ’s decision constructively withdrew her voluntary departure. See,

e.g., Toufighi v. Mukasey, 538 F.3d 988, 993 (9th Cir. 2007) (explaining that



      1
         Zaini also argues that the BIA erred by stating that she had “failed to
submit the required asylum application.” See 8 C.F.R § 1003.2(c)(1). Whether or
not this statement was made in error, it was not one of the bases on which the BIA
denied her motion to reopen.

                                          3
because Toufighi missed the ninety-day deadline to file a motion to reopen,

“Toufighi’s motion to reopen to apply for adjustment of status was properly denied

regardless of whether the ten-year bar on discretionary relief for failing to

voluntarily depart applies to him.”). The BIA thus did not abuse its discretion in

denying the motion to reopen on this ground.

      3. The BIA did not, as Zaini alleges, commit a due process violation by

denying her motion to reopen without considering all the evidence. An alien

seeking to establish such a violation must overcome the presumption that the BIA

has reviewed the record. Larita-Martinez v. I.N.S., 220 F.3d 1092, 1096 (9th Cir.

2000). Zaini fails to do so here. Contrary to her argument, the BIA did address the

testimony of Zaini’s expert witness, but concluded that it did not establish a pattern

or practice of persecution in Indonesia. The BIA was not required to engage in a

lengthy explanation for this conclusion. See Najmabadi, 597 F.3d at 990; Feng

Gui Lin v. Holder, 588 F.3d 981, 987 (9th Cir. 2009). Furthermore, Zaini’s

argument that the BIA applied a “policy to deny motions to reopen” to her case is

without support in the record.

      4. The BIA also did not abuse its discretion in denying Zaini’s motion to

reconsider. First, the motion was untimely. See 8 U.S.C. § 1229a(c)(6)(B).

Second, the BIA did not err in denying the motion on the ground that Dada v.

                                           4
Mukasey, 554 U.S. 1 (2008), has no impact on Zaini’s case. See 8 U.S.C. §

1229a(c)(6)(C) (“The motion shall specify the errors of law or fact in the previous

order and shall be supported by pertinent authority”). In Dada, the Supreme Court

held that “[an] alien must be permitted an opportunity to withdraw [her] motion for

voluntary departure, provided the request is made before the departure period

expires.” 554 U.S. at 5-6. But Zaini did not request to withdraw her request for

voluntary departure before the departure period had ended. Furthermore, her

argument that she “constructively withdrew” her request for voluntary departure by

appealing to the BIA in 2002 is negated by the fact that our court subsequently

found that her “motion for stay of removal included a timely request for stay of

voluntary departure,” and granted her the opportunity to voluntarily depart. Zaini,

113 F. App’x at 787. It was therefore not an abuse of discretion for the BIA to

deny her motion to reconsider.

      5. Finally, Zaini argues that even if her motion to reconsider was untimely,

the BIA should have granted her motion to reopen sua sponte. We reject this

argument because we do not have jurisdiction to review the denial of a motion to

reopen deportation proceedings sua sponte. Toufighi, 538 F.3d at 993 n.8; Malty v.

Ashcroft, 381 F.3d 942, 945 n.1 (9th Cir. 2004). We therefore dismiss this

argument.

                                         5
PETITION DENIED in part and DISMISSED in part.




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