Ordonez-Velasquez v. Gonzales

138 F. App'x 974

Opinion

MEMORANDUM

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Osfredi Vidal Ordonez-Velasquez, a native and citizen of Guatemala, petitions for review of the Board of Immigration Appeals’ (“BIA”) order denying his motion to reopen removal proceedings. We have partial jurisdiction under 8 U.S.C. § 1252. We review for abuse of discretion the denial of a motion to reopen, de Martinez v. Ashcroft, 374 F.3d 759, 761 (9th Cir.2004), and we deny in part and dismiss in part the petition for review.

The BIA did not abuse its discretion in denying Ordonez-Velasquez’s motion to reopen as untimely because he did not file it within ninety days of the BIA’s final order of removal. See 8 C.F.R. § 1003.2(c)(2); Azanor v. Ashcroft, 364 F.3d 1013, 1021-22 (9th Cir.2004).

The BIA also acted within its discretion in denying the motion to reopen because Ordonez-Velasquez’s failure to depart during his voluntary departure period rendered him ineligible to adjust his status. See de Martinez, 374 F.3d at 764 (holding that BIA did not err in denying motion to reopen that was filed after expiration of alien’s voluntary departure period because alien had failed to depart). We reject Ordonez-Velasquez’s contention that his pending 1-140 petition excuses his failure to depart because the applicable voluntary departure statute no longer provides for consideration of exceptional circumstances. Compare 8 U.S.C. § 1229c(d) with 8 U.S.C. § 1252b(e)(A) (repealed 1996).

We lack jurisdiction to review the BIA’s decision whether to invoke its sua sponte authority to reopen. See Abassi v. INS, 305 F.3d 1028, 1032 (9th Cir.2002). We also lack jurisdiction to review the BIA’s affirmance of the immigration judge’s denial of Ordonez-Velasquez’s applications for asylum, withholding of removal and relief under the Convention Against Torture because he failed to timely file a separate petition seeking review of the BIA’s October 2003 order. See Andia v. Ashcroft, 359 F.3d 1181, 1183 n. 3 (9th Cir.2004).

PETITION FOR REVIEW DENIED in part; DISMISSED in part.

This disposition is not appropriate for publication and may not be cited to or by the courts of this circuit except as provided by Ninth Circuit Rule 36-3.