Casteneda-Rivera v. Holder

423 F. App'x 729

• Court: Court of Appeals for the Ninth Circuit
• Decided: March 23, 2011
• Docket: 07-73379
• Status: Unpublished

Opinion

ORDER

The government’s petition for panel rehearing is granted.

The memorandum disposition filed on June 8, 2010, is withdrawn. A new memo randum disposition will be filed concurrently with this order.

Any petition for rehearing of the new memorandum disposition must be filed within 45 days.

MEMORANDUM **

Jesus Casteneda-Rivera, a native and citizen of Mexico, petitions for review of the Board of Immigration Appeals’ (“BIA”) order denying his motion to reopen proceedings to apply for adjustment of status. Our jurisdiction is governed by 8 U.S.C. § 1252. We deny in part and dismiss in part the petition for review.

The BIA did not abuse its discretion in denying Casteneda-Rivera’s motion as untimely where the motion was filed more than five months after the BIA’s final administrative order. See 8 C.F.R. § 1003.2(c)(2); see Lara-Torres v. Ashcroft, 383 F.3d 968, 972 (9th Cir.2004) (holding that BIA denials of motions to reopen are reviewed for abuse of discretion), amended by 404 F.3d 1105 (9th Cir. 2005).

We lack jurisdiction to review Castene-da-Rivera’s equitable tolling contention because he failed to exhaust this claim before the agency. See Barron v. Ashcroft, 358 F.3d 674, 678 (9th Cir.2004).

We agree with the determination in this court’s March 13, 2008, order that at the time that Casteneda-Rivera filed his motion to stay his voluntary departure period, his voluntary departure period had expired. Casteneda-Rivera’s motion to reopen did not stay his period of voluntary departure because the motion was untimely. See Azarte v. Ashcroft, 394 F.3d 1278, 1280 (9th Cir.2005) (concluding that the BIA abuses its discretion “when it dismisses a motion to reopen, timely filed by an alien during his voluntary period, because the alien subsequently fails to depart prior to the end of the period while awaiting the BIA’s decision”) (emphasis added); see also Barroso v. Gonzales, 429 F.3d 1195, 1205 (9th Cir.2005) (“the timely filing of a motion to reopen ... automatically tolls the voluntary departure period”) (emphasis added).

PETITION FOR REVIEW DENIED in part; DISMISSED in part.

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