Lambarri-Yanez v. Gonzales

131 F. App'x 538

• Court: Court of Appeals for the Ninth Circuit
• Decided: May 13, 2005
• Docket: Agency No. A29-559-148; Agency No. A29-559-148
• Status: Published

Opinion

MEMORANDUM

**

Enrique Lambarri-Yanez, a native and citizen of Mexico, petitions for review of the Board of Immigration Appeals’ (“BIA”) decision denying his motion to reopen and its decision denying his motion to reconsider. To the extent we have jurisdiction, it is conferred by 8 U.S.C. § 1105a(a). Kalaw v. INS, 133 F.3d 1147, 1150 (9th Cir.1997). We review the BIA’s denial for a motion to reopen for an abuse of discretion. Cano-Merida v. INS, 311 F.3d 960, 964 (9th Cir.2002). We dismiss in part and grant in part the petition.

The BIA improperly denied the Petitioner’s motion to reopen his deportation proceedings because his BIA appeal was filed before October 1, 1996, his case was pending before the BIA during the qualifying period, and his application for suspension of deportation was denied on the basis of the stop time rule. See Barahona-Gomez v. Ashcroft, 243 F.Supp.2d 1029, 1032 (N.D.Cal.2002) (order).

Accordingly, we remand to the BIA for proceedings consistent with this opinion. See INS v. Ventura, 537 U.S. 12, 16, 123 S.Ct. 353, 154 L.Ed.2d 272 (2002) (per curiam).

We lack jurisdiction to review the BIA’s denial of the Petitioner’s motion to reconsider because he did not file a petition for review within 30 days of that decision. See Andia v. Ashcroft, 359 F.3d 1181, 1183 n. 3 (9th Cir.2004) (per curiam).

All remaining contentions are unpersuasive.

PETITION FOR REVIEW DISMISSED in part and GRANTED in part; REMANDED

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.