Martinez-Cornejo v. Gonzales

240 F. App'x 233

Opinion

MEMORANDUM

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Jose Orudio Martinez-Cornejo, a native and citizen of El Salvador, petitions for review of the Board of Immigration Appeals’ order dismissing his appeal from an immigration judge’s decision denying his motion to reopen deportation proceedings to seek relief under the Nicaraguan Adjustment and Central American Relief Act of 1997 (“NACARA”). To the extent we have jurisdiction, it is conferred by 8 U.S.C. § 1252. We deny in part and dismiss in part the petition for review.

The agency did not abuse its discretion in denying as untimely Martinez-Cornejo’s motion to reopen because it was filed nearly seven years after the deadline. See Iturribarria v. INS, 321 F.3d 889, 894 (9th Cir.2003) (denial of motion to reopen reviewed for abuse of discretion); 8 C.F.R. § 1003.43(e)(1) (providing that motions to reopen to apply for NACARA relief must be filed by September 11, 1998).

We lack jurisdiction to review the agency’s decision not to invoke its sua sponte authority to reopen proceedings under 8 C.F.R. § 1003.2(a). See Ekimian v. INS, 303 F.3d 1153, 1159 (9th Cir.2002).

We also lack jurisdiction to review Martinez-Cornejo’s contention that the deadline for filing his motion to reopen should have been equitably tolled because he failed to raise that issue before the agency and thereby failed to exhaust his administrative remedies. See Barron v. Ashcroft, 358 F.3d 674, 678 (9th Cir.2004) (holding that exhaustion is mandatory and jurisdictional under 8 U.S.C. § 1252(d)(1)).

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.