                                                                           FILED
                            NOT FOR PUBLICATION
                                                                           FEB 19 2016
                    UNITED STATES COURT OF APPEALS                      MOLLY C. DWYER, CLERK
                                                                         U.S. COURT OF APPEALS


                            FOR THE NINTH CIRCUIT


ISMAEL RODRIGUEZ,                                No. 12-74137

              Petitioner,                        Agency No. A092-828-245

  v.
                                                 MEMORANDUM*
LORETTA E. LYNCH, Attorney General,

              Respondent.


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

                     Argued and Submitted February 10, 2016
                              Pasadena, California

Before: KLEINFELD, McKEOWN, and IKUTA, Circuit Judges.

       An IJ found Ismael Rodriguez removable, ineligible for waiver of

inadmissibility, and ineligible for suspension of deportation. The Board of

Immigration Appeals affirmed, and denied Rodriguez’s motion reopen. We




        *
             This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
dismiss Rodriguez’s petition in part for lack of jurisdiction, and deny in part

because the Board did not abuse its discretion.



      To the extent that Rodriguez’s motion relied on errors of law in the Board’s

May 24, 2012 decision, the Board correctly recharacterized his motion as an

untimely motion to reconsider. See 8 U.S.C. § 1229a(c)(6)(B)–(C); Iturribarria v.

INS, 321 F.3d 889, 895 (9th Cir. 2003). To the extent that Rodriguez moved to

take account of new law and reopen his case sua sponte, we do not have

jurisdiction to review the Board’s denial. See Minasyan v. Mukasey, 553 F.3d

1224, 1229 (9th Cir. 2009). Rodriguez made only legal arguments and did not

provide evidence of new facts. “A motion to reopen . . . is purely fact-based,

seeking to present newly discovered facts or changed circumstances since a

petitioner’s hearing.” Doissaint v. Mukasey, 538 F.3d 1167, 1170 (9th Cir. 2008)

(citing 8 U.S.C. § 1229a(c)(7)(B); 8 C.F.R. § 1003.2(c)). It would be a “useless

formality” to remand to the Board. Vista Hill Found., Inc. v. Heckler, 767 F.2d

556, 566 n.9 (9th Cir. 1985) (quotation omitted).




                                           2
      The petition must be denied to the extent that it is a motion to reopen, and

dismissed to the extent that it seeks review of the Board’s exercise of discretion not

to reopen sua sponte.



      PETITION DENIED IN PART, DISMISSED IN PART.




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