Tzolova v. Ashcroft

120 F. App'x 147

• Court: Court of Appeals for the Ninth Circuit
• Decided: January 14, 2005
• Docket: No. 03-73956
• Status: Published

Opinion

MEMORANDUM

**

Ivanka H. Tzolova, her husband and son, natives and citizens of Bulgaria, petition for review of the Board of Immigration Appeals’ (“BIA”) denial of their motion to reopen asylum proceedings based on changed circumstances and to seek relief under the Convention Against Torture (“CAT”). Because the transitional rules apply, see Rodriguez-Lariz v. INS, 282 F.3d 1218, 1222-23 (9th Cir.2002), we have partial jurisdiction under former 8 U.S.C. § 1105a. We review for abuse of discretion, Bolshakov v. INS, 133 F.3d 1279, 1281 (9th Cir.1998), and we deny in part and dismiss in part the petition for review.

The BIA did not abuse its discretion in concluding that the new evidence the Tzolovas submitted did not establish prima facie eligibility for asylum or withholding of deportation. See id. at 1281. The Tzolovas also failed tó establish prima facie eligibility for relief under CAT because they failed to show it was more likely than not that they would be tortured if deported to Bulgaria. See Cano-Merida v. INS, 311 F.3d 960, 966 (9th Cir.2002).

We lack jurisdiction to review the BIA’s 2000 decision affirming the denial of asylum and withholding of removal because petitioners did not timely petition this Court for review of that decision. See 8 U.S.C. § 1252(b)(1); Sheviakov v. INS, 237 F.3d 1144, 1146 (9th Cir.2001) (30-day rule is mandatory and jurisdictional); Martinez-Serrano v. INS, 94 F.3d 1256, 1258 (9th Cir.1996) (motion to reopen does not toll time period for appeal).

PETITION FOR REVIEW DENIED in part, and 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.