Buenrostro-Lomeli

concurring and dissenting:

Buenrostro-Lomeli filed two motions with the Board of Immigration Appeals (“BIA”). The first was a motion to reopen to apply for adjustment of status under 8 U.S.C. § 1255 (f), which the BIA denied. Because Buenrostro-Lomeli did not timely file a petition for review of this ruling, I concur in majority’s holding that we lack jurisdiction to review it. I respectfully dissent from the remainder of the majority’s decision. Buenrostro-Lomeli’s second motion, which he properly labeled a motion to reconsider, 2 identified errors of law in the BIA’s decision denying his first motion to reopen. I would therefore grant the petition for review and remand with instructions to grant the motion to reconsider.

I.

The BIA erred as a matter of law in concluding that Buenrostro’s false testimony before the immigration judge (“IJ”) constituted a material misrepresentation so as to render him inadmissible, see 8 U.S.C. § 1182 (a)(6)(C)(i), and therefore statutorily ineligible to adjust status under § 1255(f).

*469 For purposes of the Immigration and Nationality Act (“INA”), a misrepresentation is material only if it conceals facts that are relevant to determining…

MEMORANDUM **

Jose Antonio Buenrostro-Lomeli, a native and citizen of Mexico, petitions for review of an order of the Board of Immigration Appeals (“BIA”) denying his motions to reopen and reconsider. We dismiss in part and deny in part the petition for review.

I. Motion to Reopen

We lack jurisdiction to review the denial of Buenrostro-Lomeli’s November *467 2003 motion to reopen, because he filed this petition for review more than thirty days after the BIA’s decision. 8 U.S.C. § 1252 (b)(1).

II. Motion to Reconsider

The BIA properly construed Buenrostro-Lomeli’s March 2004 motion to reconsider in accordance with its underlying purpose when it treated it as both a motion to reconsider and a motion to reopen. See Mohammed v. Gonzales, 400 F.3d 785, 792 (9th Cir.2005) (BIA properly construed motion to reconsider as motion to reopen). The motion both requested that the BIA reconsider its legal determination that Buenrostro-Lomeli was inadmissible and presented new evidence that would entitle him to relief from deportation. 8 C.F.R. § 1003.2 (b)—(c) (explaining requirements for motions to reopen and reconsider). We review the BIA’s denial of both motions for abuse of discretion.…