Ramos-Jimenez

MEMORANDUM

Ramon Ramos-Jimenez, a native and citizen of Mexico, petitions for review of the decision by the Board of Immigration Appeals (BIA) denying his motion to reconsider the denial of his motion to reopen.

1. The BIA did not err in construing the motion to reconsider, in part, as a motion to reopen, as Petitioner submitted new evidence in support of his motion. Therefore, the BIA did not err in finding that the motion, to the extent that it was a motion to reopen, was numerically barred. See 8 C.F.R. § 1003.2 (c)(2).

2. We do not lack jurisdiction over Ramos’s claim that the BIA abused its discretion in denying the motion to reconsider, because the BIA addressed the issue of prima facie eligibility. See Abebe v. Gonzales, 432 F.3d 1037, 1040-41 (9th Cir.2005) (en banc). The BIA held that “the respondent remains ineligible to apply for adjustment of status because the second Immigrant Petition for Alien Worker (Form 1-140) filed on his behalf is still pending and has not yet been approved.”

We cannot determine whether the BIA abused its discretion in denying Ramos’s motion with regard to this issue. First, the BIA’s statement above is inaccurate, because 8 C.F.R. § 1245.2…