Hernandez-Baez v. Holder

322 F. App'x 555

• Court: Court of Appeals for the Ninth Circuit
• Decided: April 20, 2009
• Docket: No. 06-75482
• Status: Published

Opinion

MEMORANDUM

**

Martin Hernandez-B aez and Antonia Hernandez, spouses and natives and citizens of Mexico, petition for review of the Board of Immigration Appeals’ (“BIA”) order denying their motion to reopen. Our jurisdiction is governed by 8 U.S.C. § 1252. We review for abuse of discretion the denial of a motion to reopen, and we review de novo due process claims. Mohammed v. Gonzales, 400 F.3d 785, 791-92 (9th Cir.2005). We deny in part and dismiss in part the petition for review.

The BIA did not abuse its discretion in denying as untimely and numerically barred Petitioners’ motion to reopen because the successive motion was filed more than two years after the BIA’s February 17, 2004 order dismissing Petitioners’ underlying appeal, and Petitioners failed to demonstrate they qualified for an exception to the time limit or for equitable tolling. See 8 C.F.R. §§ 1003.2(c)(2)(3); Itur-ribarria v. INS, 321 F.3d 889, 897 (9th Cir.2003). It follows that Petitioners have not shown a due process violation. See Lata v. INS, 204 F.3d 1241, 1246 (9th Cir.2000) (requiring error for a due process violation).

We lack jurisdiction to review the BIA’s decision not to invoke its sua sponte authority to reopen proceedings. See Ekimian v. INS, 303 F.3d 1153, 1159 (9th Cir.2002).

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.