* On February 4, 2005, Alberto R. Gonzales became the United States

Attorney General. In accordance with Rule 43(c)(2) of the Federal Rules of Appellate Procedure. Mr. Gonzales is substituted f or John Ashcroft as the Respondent in this action.

** This order and judgment is not binding precedent, e xcept under the doctrines of law of the case, res judicata, and col lateral estoppel. The court generally disfavors the citation of orders and judg ments; nevertheless, an order and judgment may be cited under the terms and condi tions of 10th Cir. R. 36.3. 

## F I L E D United States Court of Appeals Tenth Circuit 

### November 22, 2005
Clerk of Court UNITED STATES COURT OF APPEALS FOR THE TENTH CIRCUIT
VICTOR NAJERA-RODRIGUEZ,

Petitioner,

v. ALBERTO R. GONZALES, Attorney General, * Respondent. No. 04-9604 (Agency No. A93-187-057) (Petition for Review)

ORDER AND JUDGMENT **

Before TYMKOVICH, PORFILIO , and BALDOCK , Circuit Judges.

After examining the briefs and appellate record, th is panel has determined unanimously to grant the parties’ request for a dec ision on the briefs without oral argument. See Fed. R. App. P. 34(f); 10th Cir. R. 34.1(G). The case is therefore ordered submitted without oral argument.1 The government filed a motion to dismiss this petit ion for review arguing

that it is untimely because it was filed on the thi rty-first day after the BIA’s decision, November 5, 2004. The records of the cou rt reveal that the petition was actually received on November 4, 2004, but that it was not placed on the docket until November 5, 2004. This was a clerical error. The Clerk of Court is directed to amend the docket to reflect that the petition fo r review was filed on November 4, 2004. -2- Victor Najera-Rodriguez petitions for review of the Board of Immigration Appeals’ (BIA) decision denying his motion to recon sider and his motion to remand. An immigration judge (IJ) denied petitione r’s request for cancellation of removal on December 4, 2002 based on petitioner’s c onviction for domestic violence. Petitioner appealed to the BIA. While t he appeal was pending, petitioner filed a motion to remand to allow the IJ to consider the effect of an August 2003 order setting aside his conviction for domestic violence. On June 2, 2004, the BIA affirmed the denial of cancellation o f removal and denied the motion to remand. Petitioner did not seek review o f that decision in this court; instead, on July 1, 2004, petitioner filed a motionto reconsider and a second motion to remand with the BIA. The BIA denied boththe motion to reconsider and the second motion to remand on October 5, 2004 and petitioner appealed from that order. 1 We affirm. Petitioner contends that the BIA committed reversib le error in finding that petitioner did not establish eligibility to remand his case to the IJ based on changed circumstances surrounding his criminal conv iction. This contention,-3-

however, was the basis for petitioner’s first motio n to remand. In its June 2, 2004 order, the BIA denied petitioner’s request to reman d to present evidence that his conviction had been set aside. Because petitioner did not seek review of that decision, we lack jurisdiction to review it. See Infanzon v. Ashcroft , 386 F.3d 1359, 1361 (10th Cir. 2004) (noting lack of jurisdi ction where petitioner failed to timely petition from BIA’s order). In his motion to reconsider and his second motion t o remand, petitioner sought relief solely on the basis of his alleged me mbership in the Catholic Social Services (CSS) litigation. As part of the settleme nt of the CSS litigation, eligible aliens were permitted to apply for legalization as Special Agricultural Workers during a reopened application period. Petitioner argued that he was eligible to pursue temporary resident status because the CSS li tigation formed an independent basis for relief for those class member s. Petitioner did not, however, renew his argument concerning the BIA’s previous de nial of his first request to remand. See Admin. R. at 16. The BIA’s denial of this second motion is the only order subject to our review. Petitioner asserts that the BIA erred in its decisi on not to remand to the IJ so that he could present evidence of his membership in the CSS class action. To2 Although petitioner titled his motion a “Motion to . . . Remand,” Admin R.

at 16, the BIA treated it as a motion to reopen. P etitioner does not assert that this was error. -4- be entitled to a motion to reopen, 2petitioner must “state the new facts that will be proven at a hearing to be held if the motion is granted.” 8 C.F.R. § 1003.2(c)(1). The motion will not be granted “unless it appears t o the Board that evidence sought to be offered is material and was not available and could not have been discovered or presented at the former hearing.” Id. In his motion, petitioner simply asserts that he is a CSS class member and attaches a copy of his CSS worksheet. As the BIA noted in its decision, this evidence is not new. Admin R. at 2. Rather, the evidence is cumulative of what w as in the record at the time of the BIA’s June 2, 2004 order affirming the IJ’s dec ision. Id. at 2 (explaining that the denial in 1994 of petitioner’s application for CSS membership was an exhibit in the administrative record during petitioner’s fi rst appeal to the BIA). Accordingly, petitioner has not demonstrated that the BIA abused its discretion in denying his motion. See Tang v. Ashcroft , 354 F.3d 1192, 1194 (10th Cir. 2003). The decision of the BIA is affirmed.

Entered for the Court Timothy M. Tymkovich Circuit Judge