                             NOT FOR PUBLICATION

                     UNITED STATES COURT OF APPEALS                        FILED
                              FOR THE NINTH CIRCUIT                         FEB 20 2013

                                                                        MOLLY C. DWYER, CLERK
                                                                         U .S. C O U R T OF APPE ALS

GUMERCINDO EVERISARIO                             No. 10-73798
CUCHILLA-VENTURA,
                                                  Agency No. A079-417-450
               Petitioner,

  v.                                              MEMORANDUM *

ERIC H. HOLDER, Jr., Attorney General,

               Respondent.



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

                             Submitted February 11, 2013 **

Before:        FERNANDEZ, TASHIMA, and WARDLAW, Circuit Judges.

       Gumercindo Everisario Cuchilla-Ventura, a native and citizen of El

Salvador, petitions for review of the Board of Immigration Appeals’ (“BIA”) order

denying his motion to reopen. We have jurisdiction under 8 U.S.C. § 1252. We




          *
             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).
review for abuse of discretion the BIA’s denial of a motion to reopen. Najmabadi

v. Holder, 597 F.3d 983, 986 (9th Cir. 2010). We deny the petition for review.

      The BIA did not abuse its discretion in denying Cuchilla-Ventura’s untimely

motion to reopen where Cuchilla-Ventura did not show that his newly submitted

evidence was previously unavailable. See 8 C.F.R. §§ 1003.2(c)(1), (c)(3)(ii);

Goel v. Gonzales, 490 F.3d 735, 738 (9th Cir. 2007) (per curiam) (evidence that is

available or capable of being discovered at time of hearing cannot serve as basis

for motion to reopen). Further, Cuchilla-Ventura does not raise any challenge to

the BIA’s dispositive finding that his evidence did not address the issue of changed

circumstances.

      PETITION FOR REVIEW DENIED.




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