NOT FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FILED

FOR THE NINTH CIRCUIT

MAY 25 2016

MOLLY C. DWYER, CLERK

U.S. COURT OF APPEALS

DOLORES ARIAS MENDOZA DE No. 10-70488 CUEVAS, AKA Dolorez Mendoza Violeta, AKA Delores Mendoza-Arias de Agency No. A075-616-477 Cuevas,

Petitioner, MEMORANDUM*

v.

LORETTA E. LYNCH, Attorney General,

Respondent.

DOLORES ARIAS MENDOZA DE No. 13-70679 CUEVAS, AKA Dolorez Mendoza Violeta, AKA Delores Mendoza-Arias de Agency No. A075-616-477 Cuevas,

Petitioner,

v.

LORETTA E. LYNCH, Attorney General,

Respondent.

* This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3. On Petition for Review of an Order of the Board of Immigration Appeals

Submitted May 18, 2016** Pasadena, California

Before: PREGERSON, TALLMAN, and BEA, Circuit Judges.

Dolores Mendoza de Cuevas petitions for review of a Board of Immigration

Appeals (“BIA”) order denying a motion to remand for reconsideration of her

order of removal, and of an order denying her subsequent motion to reopen

proceedings. We review the BIA’s denial of Petitioner’s motion to remand for

abuse of discretion. Movsisian v. Ashcroft, 395 F.3d 1095, 1098 (9th Cir. 2005).

We review the BIA’s denial of Petitioner’s motion to reopen for abuse of

discretion and we review legal questions de novo. Cano-Merida v. INS, 311 F.3d

960, 964 (9th Cir. 2002). We deny the petition.

Petitioner moved the BIA to remand her case to the immigration judge to

determine whether, following de Rodriguez-Echeverria v. Mukasey, 534 F.3d

1047, 1051 (9th Cir. 2008), which held that an alien is deemed under arrest when

she is held for questioning, statements that Petitioner made to border patrol agents

were inadmissible because she was not advised of her Miranda rights. The BIA

** The panel unanimously concludes this case is suitable for decision without oral argument. See Fed. R. App. P. 34(a)(2).

2 did not abuse its discretion when it found that remand was unnecessary because

Petitioner was advised of her rights when she was served with a Notice to Appear

in formal removal proceedings. Under Samayoa-Martinez v. Holder, 558 F.3d

897, 901 (9th Cir. 2009), the DHS is not required to advise aliens of their right to

counsel or of the admissibility of their statements until aliens are placed in formal

removal proceedings.

The BIA also denied Petitioner’s motion to reopen proceedings to consider

her eligibility for special rule cancellation of removal under 8 U.S.C. §

1229b(b)(2), which provides for the cancellation of removal for an alien who “has

been battered or subjected to extreme cruelty by a spouse . . . who is or was a

United States citizen” or lawful permanent resident. The BIA’s denial of

Petitioner’s motion was not an abuse of discretion because the BIA’s conclusion

that Petitioner had not proved that her abusive former spouse was a United States

citizen or permanent resident was not illogical, implausible, or without support in

inferences that can be drawn from the record. Nor did the BIA abuse its discretion

when it found that Petitioner’s motion to reopen to file an application for asylum

relief was filed untimely where she did not provide evidence of materially changed

circumstances or conditions arising in Mexico to invoke the exception under 8

U.S.C. § 1229a(c)(7)(C)(ii).

3 Therefore, the petition is DENIED.

4

FILED

De Cuevas v. Lynch, Nos. 10-70488 & 13-70679

MAY 25 2016

Pregerson, J., dissenting: MOLLY C. DWYER, CLERK

U.S. COURT OF APPEALS

I dissent. Dolores Mendoza De Cuevas should not be considered an

enforcement priority. See Jeh Charles Johnson, Secretary of Homeland Security,

Re: Policies for the Apprehension, Detention, and Removal of Undocumented

Immigrants, 4–5 (Nov. 20, 2014).

Here, we have a lawful permanent resident, brought to America when she

was two, raised here, and schooled here, and whose ties to the U.S. are deep and

enduring. Her only extended absence happened when an abusive boyfriend

kidnapped her—sixteen, pregnant, and child in tow—to a small town in Mexico

where his abusive behavior continued for years. She was eventually able to free

herself and return home with the help of her family, almost all of whom are U.S.

citizens. Her father is a citizen, her two siblings are citizens, and her husband is a

citizen. Of her five children, four are citizens, and she has at least two grand

children who are citizens as well.

Even though her current case deals with alien smuggling, she was not

criminally charged and this appears to be an isolated incident. She is employed; she

has paid taxes since 2001; she has no other criminal history; and she has no history

of prior removals, orders of removal, or denials of status. Dolores Mendoza De

Cuevas poses no threat to this country’s national or public security. Yet, after living in the United States for more than 40 years, she will be removed.

I believe that such a tragic result is against equity and good conscience—that

is why I dissent.