Atilano-Flores v. Ashcroft

108 F. App'x 442

Opinion

MEMORANDUM

**

Jose Joel Atilano-Flores, his wife Norma Veronica Herrera-Polanco, and his daughter Laura Veronica Atilano-Herrera, petition pro se for review of the Board of Immigration Appeals’ (“BIA”) decision denying their motion to reopen their cancellation of removal proceeding. We dismiss the petition for review.

Petitioners have waived any challenge to the BIA’s determination that their motion to reopen was not filed in a timely manner under 8 C.F.R. § 1003.2(c)(2), by not raising this issue in their opening brief to this court. See Martinez-Serrano v. INS, 94 F.3d 1256, 1259 (9th Cir.1996).

We lack jurisdiction to review the BIA’s decision not to exercise its discretion to reopen petitioners’ proceedings sua sponte under 8 C.F.R. § 1003.2(a) (formerly 8 C.F.R. § 3.2(a) (2002)). See Ekimian v. INS, 303 F.3d 1153, 1156-59 (9th Cir.2002).

Finally, petitioners have failed to raise a colorable due process claim. See Torres-Aguilar v. INS, 246 F.3d 1267, 1271 (9th Cir.2001) (“to invoke our jurisdiction, a petitioner must allege at least a colorable constitutional violation.”).

PETITION FOR REVIEW DISMISSED.

This disposition is not appropriate for publication and may not be cited to or by the courts of this circuit exeept as provided by Ninth Circuit Rule 36-3.