Mendez v. Mukasey

278 F. App'x 786

Opinion

MEMORANDUM

**

Petitioners Herberto Nava Mendez and Alicia Nava Reveles petition this court for review of the Board of Immigration Appeals’ (“BIA”) November 20, 2007 order denying their motion to reopen as untimely filed.

We have reviewed the record and petitioners’ response to this court’s March 31, 2008 order to show cause. We conclude that summary disposition is appropriate 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).

Specifically, the regulations provide that a motion to reopen must be filed with the BIA within ninety days after the mailing of the BIA’s decision. 8 C.F.R. § 1003.2(c)(2). In this case, the record reflects that petitioners’ motion to reopen was filed with the BIA on June 28, 2007, 92 days after the BIA’s March 28, 2007 order dismissing petitioners’ appeal. Therefore, the BIA did not abuse its discretion when it denied petitioners’ untimely motion to reconsider. See Lara-Torres v. Ashcroft, 383 F.3d 968, 972 (9th Cir.2004), amended by 404 F.3d 1105 (9th Cir.2005).

Petitioners allege that the BIA received their motion to reopen on June 26, 2007, and attach as proof a return mailing receipt stamped by the BIA Clerk’s Office showing that the BIA Clerk’s Office received petitioners’ envelope on the 27th day of an unidentified month in 2007. To the extent the petitioners attempt to introduce new evidence related to the date on which the BIA allegedly received them motion to reopen, this court will not consider such evidence because it is not a part of the administrative record. See 8 U.S.C. § 1252(b)(4)(A).

Accordingly, this petition for review is denied.

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.

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