Saldana-German v. Ashcroft

116 F. App'x 927

• Court: Court of Appeals for the Ninth Circuit
• Decided: December 16, 2004
• Docket: No. 03-70549
• Status: Published

Opinion

MEMORANDUM

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Jose Luis Saldana-German and Adela R. Saldana, husband and wife and natives and citizens of Mexico, petition for review of the Board of Immigration Appeals’ (“BIA”) order declining to consider their untimely appeal under its sua sponte authority. We dismiss the petition for review.

We lack jurisdiction over the BIA’s decision not to exercise its discretionary authority to sua sponte consider petitioners’ untimely appeal under 8 C.F.R. § 3.1(c) (2003). See Heckler v. Chaney, 470 U.S. 821, 830, 105 S.Ct. 1649, 84 L.Ed.2d 714 (1985) (“if no judicially manageable standards are available for judging how and when an agency should exercise its discretion, then it is impossible to evaluate the agency for ‘abuse of discretion.’”); cf. Ekimian v. INS, 303 F.3d 1153, 1159 (9th Cir.2002) (“Because we cannot discover a sufficiently meaningful standard against which to judge the BIA’s decision not to reopen under § 3.2(a), we hold that we do not have jurisdiction to review [petitioners’] claim that the BIA should have exercised its sua sponte power.”).

PETITION FOR REVIEW DISMISSED.

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.