Martinez Gutierrez v. Holder

383 F. App'x 609

• Court: Court of Appeals for the Ninth Circuit
• Decided: June 10, 2010
• Docket: 08-70715
• Status: Unpublished

Opinion

MEMORANDUM **

Pedro Martinez Gutierrez and Teresita De Jesus Alfaro Cadena, natives and citizens of Mexico, petition for review of the Board of Immigration Appeals’ (“BIA”) or der denying their motion to reopen removal proceedings. Our jurisdiction is governed by 8 U.S.C. § 1252. We review for abuse of discretion the denial of a motion to reopen, Perez v. Mukasey, 516 F.3d 770, 773 (9th Cir.2008), and we deny in part and dismiss in part the petition for review.

The BIA did not abuse its discretion in denying as untimely petitioners’ motion to reopen because the motion was filed almost ten months after the BIA’s October 5, 2006, order dismissing the underlying appeal. See 8 C.F.R. § 1003.2; see also Dela Cruz v. Mukasey, 532 F.3d 946, 949 (9th Cir.2008) (per curiam) (“[T]he pen-dency of a petition for review of an order of removal does not toll the statutory time limit for the filing of a motion to reopen with the BIA.”).

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

Because the untimeliness of the motion is dispositive, we do not reach petitioners’ remaining contentions.

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.