Montoya v. Holder

333 F. App'x 260

• Court: Court of Appeals for the Ninth Circuit
• Decided: September 29, 2009
• Docket: No. 06-72508
• Status: Published

Opinion

MEMORANDUM

**

Valente Rodriguez Montoya, his wife Maria Guadalupe Treto, and two of their children, natives and citizens of Mexico, petition for review of the Board of Immigration Appeals’ (“BIA”) order denying their motion to reopen. We have jurisdiction under 8 U.S.C. § 1252. We review for abuse of discretion the denial of a motion to reopen, Iturribarria v. INS, 321 F.3d 889, 894 (9th Cir.2003), and we deny the petition for review.

The BIA did not abuse its discretion in denying petitioners’ motion to reopen because their failure to file the motion to reopen before the expiration of their voluntary departure period rendered them statutorily ineligible for the relief they sought. See 8 U.S.C. § 1229c(d); De Martinez v. Ashcroft, 374 F.3d 759, 763 (9th Cir.2004).

Petitioners’ remaining contentions are not persuasive. See Dada v. Mukasey, — U.S. -, -, 128 S.Ct. 2307, 2319, 171 L.Ed.2d 178 (2008) (an alien may withdraw his application for voluntary departure only if his voluntary departure period has not yet expired).

We deny petitioners’ second motion for a stay of removal.

PETITION FOR REVIEW DENIED.

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