                  NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
                             File Name: 12a0288n.06

                                           No. 10-4475

                            UNITED STATES COURT OF APPEALS                                FILED
                                 FOR THE SIXTH CIRCUIT
                                                                                     Mar 13, 2012
IRMA DEL CARMEN VALLE,                               )                         LEONARD GREEN, Clerk
                                                     )
       Petitioner,                                   )
                                                     )
v.                                                   )       ON PETITION FOR REVIEW
                                                     )       FROM A FINAL ORDER OF THE
ERIC H. HOLDER, JR., Attorney General,               )       BOARD OF IMMIGRATION
                                                     )       APPEALS
       Respondent.                                   )




       Before: KEITH, MARTIN, and GIBBONS, Circuit Judges.


       PER CURIAM. Irma Del Carmen Valle, a native and citizen of El Salvador who is

represented by counsel, petitions for review of a Board of Immigration Appeals order that denied her

motion to reopen her removal proceedings.

       Valle entered the United States illegally in 1989 or 1990. Valle filed an application for

asylum in 1995, and an immigration officer referred her application to an immigration judge in 2003.

Subsequently, Valle withdrew her application for asylum and sought relief only under the

Nicaraguan Adjustment and Central American Relief Act (NACARA), Pub. L. No. 105–100, 111

Stat. 2160 (1997), and alternatively, requested voluntary departure. Following an evidentiary

hearing, an Immigration Judge issued an oral decision in which he denied Valle’s requests for relief.

The Board of Immigration Appeals dismissed Valle’s subsequent appeal as without merit.

       Valle did not petition this court for judicial review of the Board’s decision. Rather, Valle

filed before the Board a motion to reconsider or to reopen her removal proceedings to seek an

adjustment of her status. The request was made, in part, because an application for a visa filed for

her by her spouse had been approved. The Board denied Valle’s motion, and this timely petition
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                                               -2-

followed. We denied Valle’s motion to stay her removal. Valle v. Holder, No. 10-4475 (6th Cir.

Dec. 14, 2010) (unpublished order).

       Valle contends that: 1) she established eligibility for NACARA relief; 2) she was of good

moral character for seven years preceding her application; 3) the Immigration Judge abused his

discretion in denying her request for voluntary departure; and 4) she was eligible for relief under 8

U.S.C. § 1255(i). The government responds that we lack jurisdiction to review the underlying denial

of voluntary departure, and that the Board properly denied Valle’s motion to reconsider or to reopen.

Upon consideration, the petition for review is denied because the Board did not abuse its discretion

in denying Valle’s motion to reconsider or to reopen.

       Valle devotes most of her brief to challenges to the Immigration Judge’s decision to deny her

voluntary departure and relief under NACARA. The government correctly notes that we lack

jurisdiction to review the underlying agency decision to deny Valle relief. Generally, an alien may

file a motion to reconsider within thirty days of the entry of an order of removal and a motion to

reopen within ninety days of the order. Gor v. Holder, 607 F.3d 180, 184 (6th Cir. 2010), cert.

denied, 131 S. Ct. 3058 (2011). However, neither a motion to reconsider nor a motion to reopen

tolls the thirty-day time period for seeking judicial review of the underlying decision. Id. at 185.

Therefore, we have no jurisdiction to review the Board’s order that dismissed Valle’s appeal from

the Immigration Judge’s decision.

       Furthermore, the Board did not abuse its discretion in denying Valle’s motion to reconsider
or to reopen her removal proceedings. The legal authority for motions to reopen comes solely from

regulations promulgated by the Attorney General. INS v. Doherty, 502 U.S. 314, 322 (1992). The

regulations provide that a motion to reopen is “within the discretion of the Board,” and that the

“Board has discretion to deny a motion to reopen even if the party moving has made out a prima

facie case for relief.” 8 C.F.R. § 1003.2(a); see also Doherty, 502 U.S. at 323. The Board has

“broad discretion” to grant or deny a motion to reopen, Gor, 607 F.3d at 187, and the Board’s denial

of a motion to reconsider or to reopen is reviewed only for an abuse of that discretion. Gordillo v.

Holder, 640 F.3d 700, 702 (6th Cir. 2011); Denko v. INS, 351 F.3d 717, 723 (6th Cir. 2003). An
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abuse of discretion occurs where a denial was without rational explanation, was an inexplicable

departure from established policies, or was based on invidious discrimination. Mezo v. Holder, 615

F.3d 616, 620 (6th Cir. 2010); Denko, 351 F.3d at 723.

       Valle cannot show that the Board abused its discretion. The Board correctly concluded that

Valle was not eligible for adjustment of her status because she was not “inspected and admitted or

paroled into the United States.” See 8 U.S.C. § 1255(a). Further, Valle was also ineligible for

adjustment of her status on the basis of an approved visa petition because the petition was filed after

April 30, 2001. See 8 U.S.C. § 1255(i)(1)(B)(i). Therefore, the Board’s decision is not an abuse of

its broad discretion.

       The petition for review is denied.
