Genaro v. Holder

328 F. App'x 525

• Court: Court of Appeals for the Ninth Circuit
• Decided: July 6, 2009
• Docket: No. 06-75446
• Status: Published

Opinion

MEMORANDUM

**

Julio De Jesus Genaro and Angelina De Jesus Martinez, husband and wife and natives and citizens of Mexico, petition pro se for review of the Board of Immigration Appeals’ (“BIA”) order denying their motion to reconsider. Our jurisdiction is governed by 8 U.S.C. § 1252. We review for abuse of discretion the denial of a motion to reconsider, Cano-Merida v. INS, 311 F.3d 960, 964 (9th Cir.2002), and we deny in part and dismiss in part the petition for review.

The BIA did not abuse its discretion in construing petitioners’ October 2, 2006, “motion to reopen” as a motion to reconsider. See Mohammed v. Gonzales, 400 F.3d 785, 793 (9th Cir.2005) (where a petitioner improperly titles a motion to reopen or reconsider, the BIA should construe the motion based on its underlying purpose). So construed, the BIA did not abuse its discretion in denying petitioners’ motion to reconsider as untimely. See 8 U.S.C. § 1229a(c)(6)(B) (a motion to reconsider must be filed within 30 days of the date of entry of a final administrative order of removal).

To the extent that petitioners are seeking review of the BIA’s August 21, 2006, order dismissing their appeal, we lack jurisdiction because the petition for review is not timely as to that order. See 8 U.S.C. § 1262(b)(i); Singh v. INS, 315 F.3d 1186, 1188 (9th Cir.2003).

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.