Avila-Rodriguez v. Mukasey

305 F. App'x 487

• Court: Court of Appeals for the Ninth Circuit
• Decided: December 31, 2008
• Docket: No. 08-71718
• Status: Published

Opinion

MEMORANDUM

**

This is a petition for review of the Board of Immigration Appeals’ (“BIA”) order denying petitioners’ motion to reopen removal proceedings.

The motion to proceed in forma pauperis is granted.

Respondent’s motion to dismiss this petition for review for lack of jurisdiction in part is granted. See 8 U.S.C. § 1252(a)(2)(B)(i); Fernandez v. Gonzales, 439 F.3d 592, 601 (9th Cir.2006) (concluding that the court lacks jurisdiction to review the Board of Immigration Appeals’ denial of motion to reopen for failure to establish a prima facie case if a prior adverse discretionary decision was made by the agency).

The BIA also construed petitioners’ motion as a motion to reconsider, and denied the motion as untimely filed. See 8 C.F.R. § 1003.2(b)(2). To the extent petitioners challenge the BIA’s decision in this regard, we deny the petition for review in part because the questions raised by this petition for review are so insubstantial as not to require further argument. See United States v. Hooton, 693 F.2d 857, 858 (9th Cir.1982) (per curiam) (stating standard).

We further note that petitioners are barred from discretionary relief because voluntary departure has expired. Cf. Granados-Osegura v. Mukasey, — F.3d — (9th Cir.2008).

All other pending motions are denied as moot. The temporary stay of removal shall continue in effect until issuance of the mandate.

PETITION FOR REVIEW DISMISSED in part, DENIED in part.

This disposition is not appropriate for publication and is not precedent except as provided by 9th Cir. R. 36-3.