Mayorga-Moran v. Gonzales

227 F. App'x 618

Opinion

MEMORANDUM

**

This is a petition for review of the Board of Immigration Appeals’ (“BIA”) order ‘denying petitioner’s motion to reopen removal proceedings.

The regulations provide that a party may file a motion to reopen “no later than 90 days after the date on which the final administrative decision was rendered in the proceeding sought to be reopened....” See 8 C.F.R. § 1003.2(c)(2). Therefore, the BIA did not abuse its discretion in affirming the decision of the Immigration Judge not to grant petitioner’s motion to reopen, filed more than 13 years after issuance of the administrative order in petitioner’s case. See id.

The regulations further provide that the BIA “may review questions of law, discretion and judgment and all other issues in appeals from decisions of immigration judges de novo.” See 8 C.F.R. § 1003.1(d)(3)(ii). Therefore, the BIA did not abuse its discretion in determining that petitioner had failed to establish “exceptional circumstances” for why the Immigration Judge should have granted her motion to reopen sua sponte, and in not remanding the application to the Immigration Judge. See Movsisian v. Ashcroft, 395 F.3d 1095 (9th Cir.2005).

Accordingly, respondent’s motion for summary disposition is granted in part because the questions raised by this petition for review are so insubstantial as not to require further argument. See United States v. Hooton, 693 F.2d 857, 858 (9th Cir.1982) (per curiam).

To the extent petitioner alleges the BIA erred in not exercising its discretion to reopen her case sua sponte, this court lacks jurisdiction to consider that argument. See Ekimian v. INS, 303 F.3d 1153, 1159 (9th Cir.2002). Accordingly, respondent’s motion to dismiss this petition for review for lack of jurisdiction is granted in part.

All other pending motions are denied as moot. The temporary stay of removal confirmed by Ninth Circuit General Order 6.4(c) shall continue in effect until issuance of the mandate.

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.