Case: 14-11029   Date Filed: 09/08/2014   Page: 1 of 3


                                                                [DO NOT PUBLISH]

                 IN THE UNITED STATES COURT OF APPEALS

                        FOR THE ELEVENTH CIRCUIT
                          ________________________

                                No. 14-11029
                            Non-Argument Calendar
                          ________________________

                            Agency No. A200-939-955



EMMA ESPERANZA MEDINA-MENENDEZ,

                                                  Petitioner,

versus

U.S. ATTORNEY GENERAL,

                                                  Respondent.

                          ________________________

                      Petition for Review of a Decision of the
                           Board of Immigration Appeals
                            ________________________

                                (September 8, 2014)

Before PRYOR, MARTIN and JORDAN, Circuit Judges.

PER CURIAM:

         Emma Esperanza Medina-Menendez seeks review of a final order of the

Board of Immigration Appeals (BIA) denying her motion to reopen her
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proceedings in order for her to apply for a Provisional Unlawful Presence Waiver

under 8 C.F.R. § 212.7(e). The BIA denied Ms. Medina-Menendez’s motion

because she was already subject to a final order of removal and, thus, ineligible for

the waiver she sought. On appeal, Ms. Medina-Menendez argues that she is

eligible for the provisional waiver on almost all of the required criteria, that the

congressional intent behind the waiver is to maintain “family unity,” and that the

BIA’s decision effectively goes against this intent by not allowing her proceedings

to be reopened.

      The BIA’s denial of a motion to reopen is reviewed for an abuse of

discretion. See Ali v. U.S. Att'y Gen., 

, 808 (11th Cir. 2006). This

review “is limited to determining whether there has been an exercise of

administrative discretion and whether the matter of exercise has been arbitrary or

capricious.”   

internal quotation marks omitted).      “Generally,

motions to reopen are disfavored, especially in a removal proceeding, where, as a

general matter, every delay works to the advantage of the deportable alien who

wishes merely to remain in the United States.”        

and

internal quotation marks omitted).

      “The decision to grant or deny a motion to reopen . . . is within the discretion

of the [BIA],” which “has discretion to deny a motion to reopen even if the party

moving has made out a prima facie case for relief.” 8 C.F.R. § 1003.2(a). Failure


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to establish a prima facie case for relief is, however, one of the grounds upon

which the BIA may deny a motion to reopen. See Jiang v. U.S. Att'y Gen., 

, 1256 (11th Cir. 2009).

      An alien is not eligible for a provisional unlawful presence waiver if “[t]he

alien is subject to a final order of removal issued under section 217, 235, 238, or

240 of the Act . . . any other provision of law.” 8 C.F.R. § 212.7(e)(4)(vi).

Because she was subject to a final order of removal, Ms. Medina-Mendez was

ineligible for the Provisional Unlawful Presence Waiver. As such, she could not

establish a prima facie case that she was eligible for the relief she sought, and the

BIA did not abuse its discretion in denying her motion to reopen.

      PETITION DENIED.




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