                                                                           FILED
                             NOT FOR PUBLICATION                            FEB 14 2013

                                                                        MOLLY C. DWYER, CLERK
                     UNITED STATES COURT OF APPEALS                      U .S. C O U R T OF APPE ALS




                              FOR THE NINTH CIRCUIT



JAIME RICARDO MONTOYA,                            No. 10-72847

               Petitioner,                        Agency No. A070-966-451

  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.

       Jaime Ricardo Montoya, a native and citizen of Guatemala, petitions for

review of the Board of Immigration Appeals’ (“BIA”) order denying his motion to

remand and dismissing his appeal from an immigration judge’s (“IJ”) decision

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 agency’s denial of a motion to reopen and a

motion to remand. Movsisian v. Ashcroft, 395 F.3d 1095, 1098 (9th Cir. 2005).

We deny the petition for review.

      Contrary to Montoya’s contention, the BIA incorporated only that portion of

the IJ’s decision finding Montoya failed to establish changed circumstances in

Guatemala to qualify for the regulatory exception to the time limitation for filing a

motion to reopen. Our review is therefore limited to that portion of the IJ’s

decision. See Molina-Estrada v. INS, 293 F.3d 1089, 1093 (9th Cir. 2002). The

agency did not abuse its discretion in denying Montoya’s untimely motion to

reopen because Montoya did not demonstrate that the evidence he submitted with

his motion was material, new, and previously unavailable. See 8 C.F.R.

§ 1003.2(c)(1) (evidence offered with a motion to reopen must have been

unavailable and unable to have been discovered or presented at the former

hearing); see also Najmabadi v. Holder, 597 F.3d 983, 990 (9th. Cir. 2010)

(petitioner’s evidence lacked requisite materiality).

      Further, the BIA did not abuse its discretion in denying Montoya’s motion to

remand because Montoya did not demonstrate the evidence he submitted was

previously unavailable and could not have been discovered. See Matter of

Grijalva, 21 I. & N. Dec. 27, 36 (BIA 1995) (the BIA will not remand to the IJ for


                                           2                                    10-72847
consideration of evidence submitted on appeal that was available and could have

been presented along with a motion to reopen filed with the IJ).

      In light of our disposition, we do not address Montoya’s remaining

arguments.

      PETITION FOR REVIEW DENIED.




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