
    Glen MARKL, Petitioner-Appellant, v. Michael CHERTOFF, Secretary of the Department of Homeland Security, et al., Respondents-Appellees.
    No. 04-56615.
    United States Court of Appeals, Ninth Circuit.
    Argued and Submitted Jan. 11, 2008.
    Filed Feb. 4, 2008.
    
      John Richard Smith, Esq., Attorney at Law, San Diego, CA, for Petitioner-Appellant.
    U.S. Attorney, San Diego, CA, for Respondents-Appellees.
    Before: FARRIS and M. SMITH, Circuit Judges, and SANDOVAL , District Judge.
    
      
       Michael Chertoff is substituted for his predecessor, Tom Ridge, as Secretary of the Department of Homeland Security, pursuant to Fed. R.App. P. 43(c)(2).
    
    
      
       The Honorable Brian E. Sandoval, United States District Judge for the District of Nevada, sitting by designation.
    
   MEMORANDUM

Glen Markl (“Markl”) appeals the denial of his motion to reopen his deportation proceedings. We have jurisdiction pursuant to 8 U.S.C. § 1252. We affirm.

The Bureau of Immigration Affairs (“BIA”) did not err in denying Markl’s motion to reopen. In re Velarde-Pacheco, 23 I. & N. Dec. 253, 256 (BIA 2002) (en banc), is inapplicable to this case because Markl’s marriage occurred before his deportation. Even assuming Velarde applies, its requirements have not been satisfied because Markl was afforded an opportunity, pursuant to 8 C.F.R. § 1003.2(c)(1), to apply for the discretionary relief sought in his motion to reopen before the immigration judge. In addition, the BIA’s decision to consider the INS’s late-filed opposition was not an abuse of discretion. 8 C.F.R. § 1003.2(g)(3).

The BIA did not violate Markl’s due process rights in denying his motion to reopen his deportation proceedings. The BIA’s order suggests that it appropriately rested its decision to grant reconsideration on the merits of the government’s motion.

AFFIRMED. 
      
       This disposition is not appropriate for publi- , er v f cation and is not precedent except as provided by 9th Cir. R. 36-3.
     