Leon Martinez v. Holder

408 F. App'x 20

• Court: Court of Appeals for the Ninth Circuit
• Decided: January 6, 2011
• Docket: 06-74941
• Status: Unpublished

Opinion

MEMORANDUM **

Efrain Leon Martinez and Patricia Leon, natives and citizens of Mexico, petition for review of the Board of Immigration Appeals’ (“BIA”) order denying their motion to reopen removal proceedings. We have jurisdiction under 8 U.S.C. § 1252. We review for abuse of discretion the denial of a motion to reopen, and review de novo questions of law. Mohammed v. Gonzales, 400 F.3d 785, 791-92 (9th Cir.2005). We deny the petition for review.

The BIA did not abuse its discretion in denying petitioners’ April 26, 2006, motion to reopen on the ground that petitioners were statutorily ineligible for cancellation of removal because they overstayed their voluntary departure period. See 8 U.S.C. § 1229c(d). We do not consider petitioners’ contentions regarding prejudice stemming from alleged ineffective assistance of counsel because petitioners’ ineligibility for cancellation based on their failure to depart is dispositive.

Petitioners’ pending motion for a stay of the voluntary departure period is denied. See Garda v. Ashcroft, 368 F.3d 1157, 1159-60 (9th Cir.2004) (order) (court lacks jurisdiction to grant a voluntary departure stay where the request is filed after expiration of the voluntary departure period).

PETITION FOR REVIEW DENIED.

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