Moises Fortin Miralda v. Loretta E. Lynch

656 F. App'x 364

• Court: Court of Appeals for the Ninth Circuit
• Decided: August 3, 2016
• Docket: 14-73115
• Status: Unpublished

Opinion

MEMORANDUM **

Baljinder Singh Cheema, a native and citizen of India, petitions for review of the Board of Immigration Appeals’ (“BIA”) order denying his 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. Toufighi v. Mukasey, 538 F.3d 988, 992 (9th Cir. 2008). We deny in part and dismiss in part the petition for review.

We do not consider materials presented with the opening brief that are not part of the administrative record. See Fisher v. INS, 79 F.3d 955, 963-64 (9th Cir. 1996) (en banc).

The BIA did not abuse its discretion in denying Cheema’s motion to reopen as untimely, where Cheema filed it six years after the BIA’s final decision, and did not establish any exception to the statutory time limitation for motions to reopen. See 8 C.F.R. § 1003.2(c); Toufighi, 538 F.3d at 993-97 (BIA did not abuse its discretion in denying motion to reopen as untimely).

We lack jurisdiction to review the BIA’s refusal to reopen proceedings sua sponte. See Mejia-Hernandez v. Holder, 633 F.3d 818, 823-24 (9th Cir. 2011); cf. Bonilla v. Lynch, 828 F.3d 1052 (9th Cir. 2016).

Finally, we lack jurisdiction to consider Cheema’s request for prosecutorial discretion. See Vilchiz-Soto v. Holder, 688 F.3d 642, 644 (9th Cir. 2012) (order).

PETITION FOR REVIEW DENIED in part; DISMISSED in part.

** This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3.