Quinonez-Rodas

dissenting:

I respectfully dissent.

Moises Quinonez-Rodas moved to reopen an in absentia deportation order on two grounds: rescission of the deportation order based on exceptional circumstances 1 and adjustment of status based upon visa petitions filed by his U.S. citizen mother and wife. The BIA, without explanation, never considered or even referred to the adjustment of status ground for reopening.

“[T]here must be a reasoned explanation by the BIA of the basis for its decision.” Franco-Rosendo v. Gonzales, 454 F.3d 965, 966 (9th Cir.2006) (citing Movsisian v. Ashcroft, 395 F.3d 1095, 1098 (9th Cir.2005)). “The BIA abuses its discretion when it fails to ‘consider and address in its entirety the evidence submitted by a petitioner’ and to ‘issue a decision that fully explains the reasons for denying a motion to reopen.’ ” Franco-Rosendo, 454 F.3d at 966 (quoting Mohammed v. Gonzales, 400 F.3d 785, 792-93 (9th Cir.2005)). It abused its discretion here.

The BIA adopted the decision of the Immigration Judge (IJ) so “we review the IJ’s decision as if it were that of the BIA.” Abebe v. Gonzales, 432 F.3d 1037, 1039 (9th Cir.2005); see also Matter of Burbano, 20 I. & N. Dec. 872,…

MEMORANDUM **

Moises Quinonez-Rodas petitions for review of the decision of the Board of Immigration Appeals (BIA) upholding the denial of his motion to reopen to rescind his *945 prior in absentia deportation order and to adjust his status. We deny the petition.

Petitioner did not argue to the immigration judge (IJ) or the BIA that the IJ erred under In re M-S-, 22 I. & N. Dec. 349 (BIA 1998) (en banc), and applied the wrong standard in evaluating petitioner’s motion to reopen. Therefore, we lack jurisdiction to consider such an argument. Garcia-Ramirez v. Gonzales, 423 F.3d 935, 938 (9th Cir.2005). We note that petitioner’s motion is untimely because it was filed more than seven years after the in absentia deportation order was entered. 8 C.F.R. § 1003.23 (b)(4)(iii)(A)(1) (motion to rescind must be filed within 180 days from the date of the in absentia deportation order if the alien wishes to demonstrate that his failure to appear was because of “exceptional circumstances”). Even if Petitioner had raised the argument that the IJ should have deemed petitioner’s adjustment of status request to be a separate motion to reopen and should have reviewed it under a different…