Galindo

concurring.

I agree that the petition for review should be denied, but for a different reason. The petitioner in this case did not file a timely petition for review from the BIA decision on the merits. This appeal is only from the BIA’s denial of the motion to reopen. Thus, our review is confined to that decision and the grounds on which the BIA based its denial of the motion to reopen. Mendez-Gutierrez v. Ashcroft, 340 F.3d 865, 869 (9th Cir.2003) (citing Martinez-Zelaya v. INS, 841 F.2d 294, 296 (9th Cir.1988)).

The BIA denied petitioner’s motion to reopen for the following reasons:

The italicized language indicates that the BIA did not engage in any review of whether petitioner was prejudiced by losing her rights to appeal to this Court. It only looked at the issue of whether petitioner was prejudiced by a delay in preparing for voluntary departure. In other words, the BIA did not interpret the motion to reopen as a mechanism for reinstating the right to appeal to this Court. This makes sense, as it would be odd for the BIA to determine whether loss of appeal rights to this Court prejudiced petitioner: The reason a petitioner would need appeal rights is to get another…

MEMORANDUM **

Dolores Enriqueta Galindo, a citizen of Guatemala, appeals the Board of Immigration Appeals’ (“BIA’s”) summary affirmance of the Immigration Judge’s (“IJ’s”) decision denying asylum and withholding of deportation. Galindo argues that the BIA and IJ erred and she should be granted asylum or withholding of deportation. Because the parties are familiar with the facts, we will not recount them here except as necessary. We have jurisdiction pursuant to 8 U.S.C. § 1105a 1 and we deny Galindo’s petition.

*246 As an initial matter, the government argues that the panel can only review the BIA’s ruling on Galindo’s motion to reopen and not the merits of her appeal. Galindo, in turn, argues that the BIA sent its initial decision on the merits to her attorneys’ old address, and therefore denied her the ability to appeal the merits of the case, abridging her substantial rights. Galindo’s attorneys sent change of address information to the INS two and a half years before that body issued its substantive decision on the merits. Moreover, less than a month after the BIA sent its initial decision to the wrong address, it sent a form granting Galindo an extension of time for…