Osorio v. Mukasey

311 F. App'x 1

• Court: Court of Appeals for the Ninth Circuit
• Decided: January 27, 2009
• Docket: No. 08-72984
• Status: Published

Opinion

MEMORANDUM

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

We review the BIA’s ruling on a motion to reopen for abuse of discretion. Perez v. Mukasey, 516 F.3d 770, 773 (9th Cir.2008).

An alien who is subject to a final order of removal is limited to filing one motion to reopen removal proceedings, and that motion must be filed within 90 days of the date of entry of a final order of removal. 8 U.S.C. § 1229a(c)(7)(A), (C)(i); 8 C.F.R. § 1003.2(c)(2). Because petitioner’s motion to reopen was filed beyond the 90-day deadline, and it was petitioner’s fifth motion to reopen, the BIA did not abuse its discretion in denying petitioner’s motion to reopen as untimely and numerically-barred. See id.

Further, the BIA did not abuse its discretion in declining to equitably toll the time and number limitations on motions to reopen on the ground that petitioner did not establish prejudice from the alleged ineffective assistance of his prior representative. See Iturribarria v. INS, 321 F.3d 889, 899-900 (9th Cir.2003). Because the motion to reopen presented no evidence that petitioner now has a qualifying relative, he remains statutorily ineligible for cancellation of removal. 8 U.S.C. § 1229b(b)(l)(D); Molina-Estrada v. INS, 293 F.3d 1089, 1093-94 (9th Cir.2002).

Accordingly, respondent’s motion for summary disposition is granted 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) (stating standard).

All other pending motions are denied as moot. The temporary stay of removal 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.