Tuigamala v. Ashcroft

52 F. App'x 81

• Court: Court of Appeals for the Ninth Circuit
• Decided: December 5, 2002
• Docket: Nos. 01-70592, INS. A27-257-056
• Status: Published

Opinion

MEMORANDUM

*

The Board of Immigration Appeals (“BIA”) declined to reopen Appellant Tuaia Tuigamala’s case to allow him to file for adjustment of status to that of a lawful permanent resident under 8 U.S.C. § 1255(a). Tuigamala, whose wife and seven children are all United States citizens, nationals or lawful permanent residents, is the recipient of an approved visa. He hoped to reopen his deportation proceedings so that he could remain with his family in the United States, where he has resided for over twenty years, but his motion to reopen was untimely. Tuigamala argues that the BIA should have reopened his case sua sponte because of the “exceptional circumstances” presented in his motion.

We, however, lack jurisdiction to consider Tuigamala’s claim that the BIA should have reopened his case sua sponte. Ekimian v. INS, 303 F.3d 1153, 1159 (9th Cir.2002) (“[T]he decision of the BIA whether to invoke its sua sponte authority [to reopen] is committed to its unfettered discretion.”) (quoting Prado v. Reno, 198 F.3d 286, 292 (1st Cir.1999) (internal quotation marks omitted)). Although the facts here appear to be even more compelling than those in Ekimian, the two cases cannot be materially distinguished. Accordingly, Tuigamala’s petition for review is DENIED.

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.