Garcia-Rodrigues v. Immigration & Naturalization Service

56 F. App'x 397

• Court: Court of Appeals for the Ninth Circuit
• Decided: February 19, 2003
• Docket: No. 01-71741; INS Nos. A75-304-304, A75-310-111
• Status: Published

Opinion

MEMORANDUM

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We limit our review in this appeal to a narrow question: whether the Board of Immigration Appeals (BIA) properly denied Jesus Garcia-Rodrigues’s (“Garcia-Rodrigues”) and Maria Guadalupe Gil de Garcia’s (“Petitioners”) motion to reopen. We review the BIA’s denial of Petitioners’ motion to reopen for an abuse of discretion. Socop-Gonzalez v. INS, 272 F.3d 1176, 1187 (9th Cir.2001)(en banc). Because the BIA did not abuse its discretion in this case, we deny the petition.

In Martinez-Zelaya v. INS, we explained that our review on appeal is “confined to the BIA’s decision and the bases on which the BIA relied.” 841 F.2d 294, 296 (9th Cir.1988). The BIA denied Petitioners’ motion to reopen on the sole ground that it was untimely filed under 8 C.F.R. § 3.2(c)(2).² Petitioners’ sole argument contesting this determination is that the BIA lacked jurisdiction to institute removal proceedings against one of the petitioners, Garcia-Rodrigues, because of his pending Special Agricultural Worker (“SAW”) application. We rejected this argument in Yao v. INS, and held that “[w]hile an applicant may not be deported [while an SAW application is pending], no statutory or regulatory provision bars the initiation of deportation proceedings or precludes the entry of a deportation order. The order simply may not be executed unless and until an adverse legalization determination is made and is final.” 2 F.3d 317, 319 (9th Cir.1993) We conclude that the BIA had jurisdiction over Petitioners to commence deportation proceedings against the Petitioners. Because Petitioners have not presented any other arguments demonstrating that the BIA abused its discretion in denying the Petitioners’ untimely motion to reopen, we deny the petition.

PETITION DENIED.

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

2 . We do not review the merits of the BIA’s summary dismissal of the Immigration Judge's order because that issue is not before us.